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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-11065
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D.C. Docket No. 6:15-cr-00190-PGB-GJK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID RYAN ALBERTS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(June 13, 2017)
Before MARTIN, JILL PRYOR, and ANDERSON, Circuit Judges.
MARTIN, Circuit Judge:
This is David Alberts’s appeal of his 120-month prison sentence imposed
after he pled guilty to receiving and possessing child pornography. Mr. Alberts
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says the District Court made a mistake when it raised by five his offense level
under United States Sentencing Guidelines (“USSG”) § 2G2.2(b)(5). Mr.
Alberts’s sentence was made longer, as called for under § 2G2.2(b)(5), once the
District Court found that he “engaged in a pattern of activity involving the sexual
abuse or exploitation of a minor.” He argues he should not have received this
longer sentence under § 2G2.2(b)(5) because he himself was only a minor when
any sexual abuse of other minors took place. Mr. Alberts also argues he should not
be sentenced more harshly now, because any bad acts he committed as a teenager
were decades ago. He also argues that his sentence is unreasonable. After careful
review, and with the benefit of oral argument, we affirm his sentence.
I. BACKGROUND
Based on an investigative lead, Federal Bureau of Investigation agents in
Orlando, Florida learned that in late February and early March of 2015, Mr.
Alberts had been accessing a website that regularly hosted child pornography. On
August 10, 2015, law enforcement officers went to Mr. Alberts’s home and
interviewed him. During the interview, Mr. Alberts admitted to accessing,
receiving, and possessing child pornography for the last six months. He also
acknowledged that he had looked at child pornography as long as 15 years ago.
Upon searching his thumb drive, the agents found over 160 images of child
pornography. A federal grand jury then indicted Mr. Alberts for (1) one count of
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receiving child pornography in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and
(b)(1); and (2) one count of possessing child pornography in violation of 18 U.S.C.
§§ 2252A(a)(5)(B) and (b)(2). Mr. Alberts pled guilty to both counts. He did so
with no plea agreement with the government.
The Presentence Investigation Report (“PSR”) sets out that Mr. Alberts
admitted to engaging in sexual acts with his younger relatives on different
occasions, when they were under the age of 12 and “he was approximately 16
years old.” The PSR contains some details about those incidents. The PSR also
says that Mr. Alberts admitted to searching for images depicting incest, and indeed,
law enforcement agents found numerous incest-related stories on his thumb drive.
The PSR explained that as a child, Mr. Alberts suffered physical, emotional, and
sexual abuse at the hands of various family members. Based on his teenage sex
acts with his younger relatives, the PSR assessed a five-level increase to his
offense level under USSG § 2G2.2(b)(5), for “engag[ing] in a pattern of activity
involving the sexual abuse or exploitation of a minor.” So although the PSR also
reflected that Mr. Alberts had served in the United States Military for 20 years and
received commendations for his service, it calculated his offense level to be 33 and
his criminal history category to be I. This resulted in a sentencing guideline range
of 135 to 168 months.
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At sentencing, Mr. Alberts did not challenge the factual accuracy of the
PSR, but he objected to the § 2G2.2(b)(5) enhancement. He argued the
enhancement did not apply to him for three reasons. First, he himself was a minor
when he engaged in sexual acts with his younger relatives. Second, those events
happened about 30 years ago and “there is no evidence that [he] has sexually
abused or exploited a child as an adult.” Third, the facts surrounding those events
are “vague and not corroborated or [] investigated,” such that it is “somewhat
unclear as to what may or may not have happened with those two children.” Mr.
Alberts requested a downward variance based in part on his military service; the
extensive physical, emotional, and sexual abuse he suffered as a child at the hands
of his family members; and the depression and impaired psychological
development he suffered as a result of this abuse.
The District Court adopted the facts set out in the PSR, and overruled Mr.
Alberts’s objection to the five-level “pattern of activity” increase under
§ 2G2.2(b)(5). It accepted the determination that Mr. Alberts’s guidelines range
was 135 to 168 months. Then, in deciding Mr. Alberts’s sentence, the court
expressly identified and weighed several aggravating and mitigating factors. As
aggravators, the court discussed the nature and circumstances of Mr. Alberts’s
crime, observing that it involved images of very young children and “fairly
sophisticated” use of a special network that enabled him to access child
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pornography on the internet anonymously. The court highlighted the seriousness
of Mr. Alberts’s offense in terms of the harm done to child victims when child
pornography is circulated. The court emphasized the need for punishment and
specific deterrence. It also factored in his past sexual conduct with his younger
relatives and his “long term” and “very serious” preoccupation with “sex with very
young children.” The sentencing judge told Mr. Alberts “[y]our pattern of
behavior over the years demonstrates to me you do pose a danger to the
community and you need a period of time where you can receive the treatment that
you should have.” The court also discussed mitigating factors. Specifically, the
court recognized the extensive abuse Mr. Alberts suffered as a child, as well as the
mental health issues he experienced as a result of that abuse. The court noted Mr.
Alberts’s long and decorated service in the military, as well as the impact the
sentence would have on his family, including his daughter.
In light of all these circumstances, the District Court decided to sentence Mr.
Alberts below his guideline range. The court said that allowing § 2G2.2(b)(5) to
raise Mr. Alberts’s offense level by five “slightly overstates the seriousness of [his]
offense conduct” because the sexual acts he engaged in with his younger relatives
happened so long ago. Thus, “after considering all the factors set forth in” 18
U.S.C. § 3553, the court sentenced Mr. Alberts to 120-months imprisonment.
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II. THE USSG § 2G2.2(b)(5) ENHANCEMENT
Mr. Alberts challenges the longer sentence he got on account of USSG
§ 2G2.2(b)(5) on three grounds. We address each argument in turn. In doing so,
we review the District Court’s findings of fact supporting the longer sentence for
clear error. United States v. McGarity, 669 F.3d 1218, 1232 (11th Cir. 2012). The
government “bears the burden of establishing by a preponderance of the evidence
the facts necessary to support a sentencing enhancement.” United States v. Askew,
193 F.3d 1181, 1183 (11th Cir. 1999). Further, whether a particular guideline
enhancement applies to a given set of facts is a question of law we review de novo.
McGarity, 669 F.3d at 1232.
A. SUFFICIENCY OF FACTS
First, Mr. Alberts says the government did not put forward sufficient
evidence to justify giving him a longer sentence because of a “pattern of activity”
as defined by § 2G2.2(b)(5). The PSR and the District Court applied this
enhancement based on Mr. Alberts’s own admission to law enforcement officers.
As we’ve said, Mr. Alberts did not object at sentencing to the facts included in the
PSR on this subject. Neither does he deny those facts on appeal, nor does he claim
that his admission was mischaracterized. Instead, he argues his admission was not
sufficient to support the enhancement because what he can recall about these
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incidents from so long ago did not constitute “competent and reliable evidence”
and it was not corroborated by other evidence.
Using the standard we must for reviewing these findings, there was enough
evidence to support the District Court’s decision to find a “pattern of activity.”
Although Mr. Alberts’s admission was about events from 30 years ago, there was
nothing else to suggest it was not reliable. He argued below that his admission was
“vague,” but our review of the record does not convince us this is so. His
admission included specific details about the acts he engaged in with his young
relatives. Beyond that, his admission was corroborated by other indicators of his
long-standing preoccupation with incest and pedophilia, including the incest-
related stories found on his thumb drive and his admission that he had been
looking at child pornography for at least 15 years. On this record, we cannot say
we have a “definite and firm conviction” that the District Court’s findings of fact
regarding the § 2G2.2(b)(5) enhancement were erroneous. See United States v.
Foster, 155 F.3d 1329, 1331 (11th Cir. 1998). The District Court did not clearly
err in finding the government proved the factual basis for the enhancement by a
preponderance of the evidence. See Askew, 193 F.3d at 1183.
B. TEMPORAL PROXIMITY
Second, Mr. Alberts says even assuming he engaged in sexual acts with his
younger relatives when he was a teenager, this happened 30 years ago and is
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therefore “too attenuated” and “egregiously too far into the past as a matter of law”
to support a “pattern of activity” enhancement under USSG § 2G2.2(b)(5). He
concedes this argument is foreclosed by this Court’s binding precedent in United
States v. Turner, 626 F.3d 566, 572 (11th Cir. 2010) (holding that § 2G2.2(b)(5)
“does not place a time limit on past instances of sexual abuse or exploitation a
court may consider in finding a pattern of activity”). However he wishes to
preserve the argument for further appellate review. And so he has.
C. MINOR-ON-MINOR CONDUCT
As discussed earlier, USSG § 2G2.2(b)(5) increases a defendant’s offense
level by five levels if the defendant has ever “engaged in a pattern of activity
involving the sexual abuse or exploitation of a minor.” Mr. Alberts’s third
argument is that he should not be punished for a “pattern of activity” because he
himself was a minor at the time of these earlier acts. The question is whether acts
of a defendant, done when he was a minor, can support the imposition of a longer
sentence under USSG § 2G2.2(b)(5). Both the Third Circuit and the Eighth Circuit
have summarily affirmed district judges who enhanced a criminal defendant’s
sentence based on that defendant’s juvenile conduct against other minors. See
United States v. Olfano, 503 F.3d 240, 243 (3d Cir. 2007); United States v.
Woodard, 694 F.3d 950, 953–54 (8th Cir. 2012). The Second Circuit also held that
juvenile conduct against other minors can support a § 2G2.2(b)(5) enhancement,
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but its opinion discussed this issue in some depth. United States v. Reingold, 731
F.3d 204 (2d Cir. 2013).
In Reingold, the Second Circuit reversed a district court’s decision to
“exclude[] from § 2G2.2(b)(5) consideration [] Reingold’s first two sexual contacts
with his half-sister on the ground that defendant was then himself a minor.” Id. at
224. The Reingold court gave two reasons for its holding. First, § 2G2.2(b)(5)’s
application notes define “sexual abuse or exploitation” to include conduct
described in particular sections of Title 18, some of which contemplate imposing
criminal penalties on minors. See USSG § 2G2.2 cmt. n.1. For example, the
application notes say “sexual abuse or exploitation” includes conduct described in
18 U.S.C. § 2241, and that section makes it a crime to knowingly engage “in a
sexual act with another person who has not attained the age of 12.” 18 U.S.C.
§ 2241(c). The Second Circuit rightly acknowledged, “§ 2241(c) does not limit its
coverage to offenders over the age of 18.” Reingold, 731 F.3d at 225. So if
minors can be prosecuted under § 2241, that means acts committed by a defendant
when he was a minor can in turn support a § 2G2.2(b)(5) enhancement later on.
See id. Second, the Reingold court observed that other provisions of the
Guidelines explicitly condition their enhancements “on whether relevant offenses
were adult convictions.” Id. at 224–25. To the contrary, neither § 2G2.2(b)(5) nor
its application notes “require consideration of a defendant’s age at the time of past
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instances of sexual abuse or exploitation.” Id. at 225. This also suggests that acts
of sexual abuse or exploitation committed by minors against other minors can
support an enhancement under § 2G2.2(b)(5). See id.
We find the Second Circuit’s reasoning in Reingold persuasive. In
particular, § 2G2.2(b)(5)’s application notes define “sexual abuse or exploitation”
by explicitly referring to several code sections under which minors can be
convicted.1 Nothing in § 2G2.2(b)(5) limits its application to adult conduct. Our
analysis therefore leads us to conclude that acts committed by defendants when
they were minors may support a “pattern of activity” enhancement under USSG
§ 2G2.2(b)(5).
This conclusion does not, however, end our inquiry. Although the “pattern
of activity” sentencing enhancement can be supported by minor-on-minor conduct,
it does not follow that all such conduct can support the enhancement. Instead, only
conduct that falls within one of the statutory sections referenced in the definition of
“sexual abuse or exploitation” in § 2G2.2(b)(5)’s application notes can justify a
“pattern of activity” enhancement.
1
In addition to 18 U.S.C. § 2241, the definition of “sexual abuse or exploitation” in the
application notes refers to 18 U.S.C. § 2243. See USSG § 2G2.2 cmt. n.1. Like § 2241, § 2243
criminalizes acts committed by minors. Specifically, a person violates § 2243 if he knowingly
engages in a sexual act with a minor who is (1) 12 to 15 years of age; and (2) at least four years
younger than him. See 18 U.S.C. § 2243(a). Thus, a 16-year-old who knowingly engages in a
sexual act with a 12-year-old could be convicted under § 2243.
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For Mr. Alberts, his actions from 30 years ago fall within the reach of
§ 2G2.2(b)(5). Again, § 2G2.2(b)(5)’s application notes define “sexual abuse or
exploitation” to include conduct described in 18 U.S.C. § 2241, and § 2241(c)
makes it a crime to knowingly engage in a “sexual act” with someone younger than
12 years old. Mr. Alberts admitted to engaging in sexual acts 2 with his younger
relatives on different occasions when he was “approximately” 16 years old.
Section 2241(c) therefore criminalizes Mr. Alberts’s juvenile conduct. As a result,
that conduct can be used to support a “pattern of activity” enhancement under
USSG § 2G2.2(b)(5).
III. REASONABLENESS OF THE SENTENCE
Mr. Alberts also argues his sentence is both procedurally and substantively
unreasonable. We review the reasonableness of a sentence for abuse of discretion.
Turner, 626 F.3d at 573. In reviewing whether a sentence is reasonable from a
procedural standpoint, we must “ensure that the district court committed no
significant procedural error” during sentencing. United States v. Pugh, 515 F.3d
1179, 1190 (11th Cir. 2008) (quotation omitted). A district court commits a
procedural error if it considers an improper sentencing factor. See United States v.
Vandergrift, 754 F.3d 1303, 1308 (11th Cir. 2014). For substantive
2
18 U.S.C. § 2246 defines “sexual act” as that term is used in § 2241 and other sections
in Chapter 109A. The PSR shows that the acts Mr. Alberts engaged in with his younger relatives
were “sexual acts” within the meaning of § 2246, and Mr. Alberts does not argue otherwise.
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reasonableness, we review a defendant’s sentence in light of the totality of the
circumstances and the “purposes of sentencing stated in § 3553(a).” United States
v. Moran, 778 F.3d 942, 982 (11th Cir. 2015) (quotation omitted). The § 3553(a)
factors include the nature and circumstances of the offense; the history and
characteristics of the defendant; the applicable guideline range; and the need to
reflect the seriousness of the offense, deter criminal conduct, and protect the public
from the defendant’s future crimes. See 18 U.S.C. § 3553(a). The weight assigned
to any particular factor is within the discretion of the District Court, and we will
reverse a sentence as substantively unreasonable only if “we are left with the
definite and firm conviction” that the District Court “committed a clear error of
judgment in weighing” the factors by arriving at a sentence “outside the range of
reasonable sentences dictated by the facts of the case.” United States v. Williams,
456 F.3d 1353, 1363 (11th Cir. 2006), abrogated on other grounds by Kimbrough
v. United States, 552 U.S. 85, 128 S. Ct. 558 (2007).
A. PROCEDURAL REASONABLENESS
Mr. Alberts says his sentence is procedurally unreasonable under Tapia v.
United States, 564 U.S. 319, 131 S. Ct. 2382 (2011), because the District Court
improperly considered his need for rehabilitation as a sentencing factor. He points
to the District Court’s statement at sentencing that “[y]our pattern of behavior over
the years demonstrates to me you do pose a danger to the community and you need
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a period of time where you can receive the treatment that you should have.”
Because Mr. Alberts did not make this objection below, we review for plain error
only. See Vandergrift, 754 F.3d at 1307. Thus, we will not reverse Mr. Alberts’s
sentence as procedurally unreasonable unless he shows (1) the District Court erred;
(2) the error was plain; (3) the error affected his substantial rights; and (4) the error
“seriously affected the fairness, integrity, or public reputation of judicial
proceedings.” See id. (quotation omitted and alteration adopted).
In Tapia, the Supreme Court held the Sentencing Reform Act of 1984
prohibits federal courts from “imposing or lengthening a prison term in order to
promote a criminal defendant’s rehabilitation.” 564 U.S. at 321, 131 S. Ct. at
2385. This circuit has expressly declined to limit Tapia to “situations where the
district court either (1) specifically tailors the length of a defendant’s sentence to
permit completion of a rehabilitation program or (2) makes rehabilitation the
‘dominant’ factor in the sentencing court’s calculus.” Vandergrift, 754 F.3d at
1310. Instead, this Court applied Tapia to hold that a district court errs whenever it
“considers rehabilitation when imposing or lengthening a sentence of
imprisonment.”3 Id.
3
This limitation applies only to sentences of imprisonment. Sentencing courts are
permitted to consider a defendant’s rehabilitative needs when imposing sentences of probation or
supervised release. Tapia, 564 U.S. at 330, 131 S. Ct. at 2390. For example, a court can require
a defendant to undergo psychological treatment as a condition of probation. Id.
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Here, in the course of discussing the factors it weighed in arriving at Mr.
Alberts’s prison sentence, the District Court told him that he “need[ed] a period of
time where [he] can receive the treatment that [he] should have.” Thus, the
District Court erred by considering Mr. Alberts’s need for rehabilitation as a factor
in determining his prison sentence. Further, because our binding precedent clearly
precludes consideration of rehabilitation when crafting a prison sentence, see id.,
that error was plain. See United States v. Aguillard, 217 F.3d 1319, 1321 (11th
Cir. 2000) (per curiam) (holding that an error cannot be “plain” unless it is “clear
under current law” (quotation omitted)).
However, the District Court’s error did not affect Mr. Alberts’s substantial
rights. In order to affect a defendant’s substantial rights, an error “must have
affected the outcome of the district court proceedings.” United States v. Olano,
507 U.S. 725, 734, 113 S. Ct. 1770, 1778 (1993). A defendant cannot show that
his substantial rights were impacted if his “rehabilitative needs clearly constituted
only a minor fragment of the court’s reasoning.” Vandergrift, 754 F.3d at 1312
(quotation omitted). Here, the sentencing transcript shows that rehabilitation was
merely an ancillary concern. In identifying the aggravating sentencing factors, the
District Court’s “primary considerations” were the seriousness of Mr. Alberts’s
offense, the need for punishment and specific deterrence, and the need to protect
society from his dangerous actions. See id. Indeed, immediately before
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announcing the sentence, the District Court re-emphasized all of these factors, but
did not mention rehabilitation. Because Mr. Alberts has failed to show his
sentence would have been different had the District Court not considered
rehabilitation, we affirm his sentence as procedurally reasonable.
B. SUBSTANTIVE REASONABLENESS
Mr. Alberts also argues his 120-month sentence is substantively
unreasonable because the District Court should not have applied the “pattern of
activity” enhancement under USSG § 2G2.2(b)(5). He says his guidelines range
was erroneously inflated from 78–97 months to 135–168 months because of the
enhancement, and that in light of his correct guidelines range (78–97 months), the
District Court should not have given him a 120-month sentence.
As set out above, the District Court properly applied the § 2G2.2(b)(5)
enhancement in this case. That means Mr. Alberts’s guideline range was properly
calculated to be 135 to 168 months, and his 120-month sentence is not
substantively unreasonable. During Mr. Alberts’s sentencing, the District Court
considered the § 3553(a) factors and explicitly identified some of them, such as the
nature of his offense, his history and past conduct, the applicable guideline range,
the need for punishment and deterrence, and the need to protect the public. The
court weighed the mitigating factors against the aggravating factors and decided
that a downward departure from the guideline range would be appropriate, in part
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because it thought the “pattern of activity” enhancement “slightly overstates” his
crime. We will not reverse a sentence as substantively unreasonable unless the
District Court’s weighing constituted a “clear error of judgment” that resulted in a
sentence “outside the range of reasonable sentences.” Williams, 456 F.3d at 1363.
On this record, Mr. Alberts’s below-guidelines sentence was not outside the range
of reasonableness.
IV. CONCLUSION
We affirm Mr. Alberts’s 120-month sentence.
AFFIRMED.
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