[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-16166 ELEVENTH CIRCUIT
Non-Argument Calendar SEPTEMBER 22, 2010
________________________ JOHN LEY
CLERK
D.C. Docket No. 08-00028-CR-1-SPM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARK BRADFORD LEE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(September 22, 2010)
Before BLACK, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Mark Bradford Lee appeals his 108-month sentence imposed following his
guilty plea to receiving and distributing, as well as attempting to receive and
distribute, child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A), and
possessing child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). Lee
argues his sentence is substantively and procedurally unreasonable under the 18
U.S.C. § 3553(a) factors. Specifically, Lee contends that, given the flawed nature
of Sentencing Guidelines for child pornography, and his mitigating characteristics,
the district court failed to adequately explain its sentence. Lee also notes the court
failed to announce the calculated Guidelines range. After review, we affirm Lee's
sentence.
This Court reviews the reasonableness of a sentence under a “deferential
abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007). The
sentencing court shall impose a sentence “sufficient, but not greater than
necessary” to comply with the purposes of sentencing set forth in § 3553(a)(2),
namely, to reflect the seriousness of the offense, promote respect for the law,
provide just punishment for the offense, deter criminal conduct, protect the public
from future criminal conduct by the defendant, and provide the defendant with
needed educational or vocational training or medical care. 18 U.S.C. § 3553(a)(2).
In imposing a particular sentence, the court must also consider the nature and
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circumstances of the offense, the history and characteristics of the defendant, the
kinds of sentences available, the applicable Guidelines range, the pertinent policy
statements of the Sentencing Commission, the need to avoid unwarranted
sentencing disparities, and the need to provide restitution to victims. 18 U.S.C.
§ 3553(a)(1), (3)-(7). This Court will not reverse unless it is “left with the definite
and firm conviction that the district court committed a clear error of judgment in
weighing the § 3553(a) factors by arriving at a sentence that lies outside the range
of reasonable sentences dictated by the facts of the case.” United States v. Pugh,
515 F.3d 1179, 1191 (11th Cir. 2008).
A sentence may be either procedurally or substantively unreasonable. See
United States v. Hunt, 459 F.3d 1180, 1182 n.3 (11th Cir. 2006). “A sentence may
be procedurally unreasonable if the district court improperly calculates the
Guidelines range, treats the Guidelines as mandatory rather than advisory, fails to
consider the appropriate statutory factors, selects a sentence based on clearly
erroneous facts, or fails to adequately explain the chosen sentence.” United States
v. Gonzalez, 550 F.3d 1319, 1323 (11th Cir. 2008), cert. denied, 129 S. Ct. 2848
(2009). “The review for substantive unreasonableness involves examining the
totality of the circumstances, including an inquiry into whether the statutory
factors in § 3553(a) support the sentence in question.” Id. at 1324.
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Lee has not shown his bottom-end Guidelines sentence was unreasonable
under the totality of the circumstances, or that the district court failed to
adequately explain its sentence. The court listened to all of Lee’s objections,
explained its ruling on each one, and sustained two of them. Moreover, the court
specifically referenced Lee’s arguments for mitigation in imposing a sentence at
the lowest end of the Guidelines.
Lee has also failed to show the district court committed reversible error by
failing to verbally announce the Guidelines range at sentencing. To begin with,
Lee cites no authority for the proposition that a court commits reversible error
simply by failing to verbally announce the Guidelines range. With respect to the
court’s explanation, “nothing . . . requires the district court to state on the record
that it has explicitly considered each of the section 3553(a) factors . . . .” See
United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005). Here, the court
properly calculated the Guidelines range and stated it had considered all of the §
3553(a) factors.
Finally, Lee’s argument that child pornography guidelines are
constitutionally flawed is foreclosed by our precedent. See United States v. Pugh,
515 F.3d at 1201 n. 15. Accordingly, we affirm Lee's sentence.
AFFIRMED.
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