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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-11663
Non-Argument Calendar
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D.C. Docket No. 6:17-cr-00252-CEM-TBS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH CHARLES DESORBO, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(May 10, 2019)
Before BRANCH, EDMONDSON, and JULIE CARNES, Circuit Judges.
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PER CURIAM:
Joseph Desorbo, Jr., appeals his above-guidelines 204-month sentence for
possession of child pornography, arguing that the district court incorrectly applied
the five-level sentencing guidelines enhancement for a pattern of activity involving
the sexual abuse or exploitation of a minor and abused its discretion in varying
upward from his guideline range.
I.
We review a district court’s findings of fact supporting a sentencing
enhancement for clear error and review whether a particular guideline
enhancement applies to a given set of facts de novo. United States v. Alberts, 859
F.3d 979, 982 (11th Cir. 2017). In reviewing the district court’s findings of fact,
this Court gives substantial deference to the district court’s credibility
determinations at sentencing. United States v. Plasencia, 886 F.3d 1336, 1343
(11th Cir. 2018), cert. denied, 139 S. Ct. 837 (2019). Arguments raised for the
first time in a reply brief are abandoned. United States v. Moran, 778 F.3d 942,
985 (11th Cir. 2015).
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The Sentencing Guidelines impose a five-level enhancement to defendants
“engaged in a pattern of activity involving the sexual abuse or exploitation of a
minor.” U.S.S.G. § 2G2.2(b)(5). The government bears the burden of establishing
the facts necessary to support a sentencing enhancement by a preponderance of the
evidence. Alberts, 859 F.3d at 982. The guidelines define a “pattern of activity
involving the sexual abuse or exploitation of a minor” as any two or more separate
incidents of sexual abuse or exploitation of a minor regardless of whether the
incident occurred during the course of the offense, involved the same minor, or
resulted in a conviction. U.S.S.G. § 2G2.2, comment. (n.1). The guidelines further
define “sexual abuse or exploitation” as conduct described in specified federal
statutes, state offenses involving equivalent conduct, or an attempt or conspiracy to
commit the specified offenses. Id. Among the specified statutes is 18 U.S.C.
§ 2243(a), which applies to anyone who knowingly engages in, or attempts to
engage in, a sexual act with someone between the age of 12 and 16 years old or
with anyone at least 4 years younger. Id.; 18 U.S.C. § 2243(a). The guidelines
explicitly exclude possession of materials relating to the sexual abuse or
exploitation of a minor from this definition. U.S.S.G. § 2G2.2, comment. (n.1).
Here, the district court properly applied the enhancement for a pattern of
activity involving the sexual abuse or exploitation of a minor: the court’s factual
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findings that Desorbo had attempted to engage two minors for sex in 1998 and
2017 were not clearly erroneous findings.
II.
We review the substantive reasonableness of a sentence under the deferential
abuse-of-discretion standard of review. Gall v. United States, 552 U.S. 38, 41
(2007). The party who challenges the sentence bears the burden of showing that
the sentence was unreasonable considering the record and the § 3553(a) factors.
United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).
We must first confirm that the district court did not commit a significant
procedural error, such as an improper guideline range calculation. Gall, 552 U.S.
at 51. If the sentence was procedurally reasonable, this Court must next determine
whether the sentence was substantively reasonable based on the totality of the
circumstances. Id. The district court must impose “a sentence sufficient, but not
greater than necessary, to comply with the purposes” listed in 18 U.S.C.
§ 3553(a)(2), including the need to reflect the seriousness of the crime, promote
respect for the law, provide just punishment, deter criminal conduct, and protect
the public from the defendant’s future criminal conduct. 18 U.S.C. § 3553(a),
(a)(2)(A)-(C); see also United States v. Irey, 612 F.3d 1160, 1196 (11th Cir. 2010)
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(en banc). The court must also consider “the nature and circumstances of the
offense and the history and characteristics of the defendant.” 18 U.S.C.
§ 3553(a)(1). In considering these factors, the district court does not have to
discuss each one individually but must acknowledge its consideration of the
defendant’s arguments and the § 3553(a) factors as a whole. United States v.
Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).
We do not presume that a sentence outside the guideline range is
unreasonable, but we must consider the extent of any variance and “give due
deference to the district court’s decision that the § 3553 factors, on a whole, justify
the extent of the variance.” United States v. Turner, 626 F.3d 566, 573-74 (11th
Cir. 2010). When the district court decides after “serious consideration” that a
variance is appropriate based on the § 3553(a) factors, it should explain that
variance “with sufficient justifications.” Gall, 552 U.S. at 46-47. The court’s
justification must be “compelling enough to support the degree of the variance and
complete enough to allow meaningful appellate review,” but an “extraordinary
justification” is not required for a sentence outside the guideline range. United
States v. Shaw, 560 F.3d 1230, 1238 (11th Cir. 2009) (quotation omitted). The
district court may support its upward variance based on the same factors it
considered in imposing an enhancement. United States v. Rodriguez, 628 F.3d
1258, 1264 (11th Cir. 2010). A sentence well below the statutory maximum
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“points strongly to reasonableness.” United States v. Nagel, 835 F.3d 1371, 1377
(11th Cir. 2016).
We will only remand for resentencing when “we are 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). The weight to be given each § 3553(a)
factor is within the district court’s sound discretion. United States v. Kuhlman, 711
F.3d 1321, 1327 (11th Cir. 2013). Nevertheless, a district court can abuse its
discretion when it (1) fails to consider relevant factors that were due significant
weight, (2) gives significant weight to an improper or irrelevant factor, or
(3) commits a clear error of judgment by balancing the proper factors
unreasonably. Id. at 1326-27 (quoting Irey, 612 F.3d at 1189).
Here, the district court did not abuse its discretion in varying upward from
Desorbo’s guideline range. The court weighed Desorbo’s possession of many
sadistic videos and images of young children and his attempted sexual encounters
with two minors against his family’s and friends’ support and his acceptance of
responsibility. The court could reasonably conclude that Desorbo presented a
significant danger to society that warranted a 36-month upward variance.
AFFIRMED.
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United States v. Joseph Charles Desorbo, Jr.
Combined Opinion