[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-11493
September 7, 2006
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 05-60224-CR-JAL
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BERT DENNIS FREEMAN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 7, 2006)
Before DUBINA, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Bert Dennis Freeman appeals his 75-month sentence, and life term of
supervised release, for receipt and possession of child pornography, in violation of
18 U.S.C. §§ 2252A(a)(2), (b)(1), (a)(5)(b), and (b)(2). On appeal, Freeman
argues: (1) that the portion of his sentence imposing a life term of supervised
release is unreasonable in light of the 18 U.S.C. § 3553(a) factors; and (2) that his
Fifth Amendment due process rights were violated because the district court did
not apply a preponderance-of-the-evidence standard in sentencing him to a life
term of supervised release. After careful review, we find no error and affirm.1
The relevant facts are these. On August 30, 2005, Freeman was indicted for
knowingly receiving and attempting to receive material containing child
pornography (two videotapes identified as “#7” and “#23”), in violation of 18
U.S.C. §§ 2252A(a)(2) and (b)(1) (Count 1), and knowingly and intentionally
possessing material containing child pornography (videotapes “#7” and “#23”), in
violation of §§ 2252A(a)(5)(b) and (b)(2). Freeman pled guilty to both counts and
proceeded to sentencing.
According to the presentence investigation report (“PSI”), Freeman was
arrested after ordering, receiving, and submitting payment for two child
pornography videos, in response to an advertisement on the internet. After his
arrest, federal agents also found 83 files of child pornography on his computer hard
drive, 68 of which were analyzed and confirmed by agents to involve actual
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The government contends that we should review Freeman’s claims for only plain error
because he did not make any objections to the sentence at his sentencing hearing. Because we find
no error based on the district court’s § 3553(a) analysis, we need not, and do not, reach the issue of
whether there was plain error.
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children. The PSI recommended a base offense level of 22, pursuant to U.S.S.G. §
2G2.2(a)(2), and the following adjustments: (1) a 2-level reduction because
Freeman’s conduct was limited to the receipt of child pornography without the
intent to distribute, U.S.S.G. § 2G2.2(a)(2); (2) a 2-level enhancement because the
material involved prepubescent minors, U.S.S.G. § 2G2.2(b)(2); (3) a 4-level
enhancement because the material portrayed sadistic or masochistic conduct,
U.S.S.G. § 2G2.2(b)(4); (4) a 2-level enhancement because a computer was used in
the receipt of the material, U.S.S.G. 2G2.2(b)(6); and (5) a 2-level enhancement
because the offense involved more than 10, but less than 150, images, U.S.S.G. §
2G2.2(b)(6). After a 3-level reduction for acceptance of responsibility under §
3E1.1(a) and (b), Freeman’s adjusted offense level was a 27. With a criminal
history category I, Freeman faced a Guidelines imprisonment range of 70 to 87
months, and a Guidelines supervised release range of any term of years or life.
At the sentencing hearing, Freeman made no objections to the PSI or to the
application of the Guidelines. The district court directed that the details of 14
chatroom conversations between Freeman and other individuals be included in the
PSI report as relevant conduct, to which there was no objection. Freeman
presented an expert witness, Dr. Eric Imhoff, a certified provider of sex offender
treatment, who opined that Freeman had paraphilia, a condition in which an
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individual has engaged in “sexual thoughts, urges or behaviors involving. . .
children” for more than six months. Dr. Imhoff also opined that Freeman was
treatable, had accepted responsibility, and “present[ed] a low risk for a hands-on
offense.” Dr. Imhoff then was extensively cross-examined by the prosecutor and
thoroughly questioned by the district court concerning the foundation for his
opinion regarding Freeman’s low risk for recidivism.
The district court also heard testimony from Freeman, his counsel, and his
mother who urged the court to “allow [Freeman] to be continued to be monitored,
if it’s possible, without sending him far away.” Defense counsel argued for the
district court to impose a lesser imprisonment sentence, and in doing so noted that
the court had “unlimited power in terms of supervised release,” which would “be
an opportunity to make sure that [Freeman] [was] progressing on the right track”
and “would be something that [Freeman would] have to live with.”
The district court, after considering the aforementioned evidence, along with
the advisory Guidelines range of 70 to 87 months’ imprisonment and the factors of
§ 3553(a), sentenced Freeman to a 75-month term of imprisonment followed by a
life term of supervised release. The district court stated that the supervised-release
portion of Freeman’s sentence was “appropriate in this matter based upon
[Freeman’s] history of deviant sexual conduct, the 83 images of child pornography
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that were found on his computer, in addition to the offenses for which he stands
before the Court and the approximately 14 chatroom conversations in which
[Freeman] explicitly discusses and solicits sexual conduct with persons
representing themselves to be minor females.” This appeal followed.
Freeman asserts that his sentence was unreasonable because the district court
did not adequately consult some of the factors listed in 18 U.S.C. § 3553(a). He
makes various arguments, some that he raised in the district court and others that
he raises for the first time here, in support of mitigation. We are unpersuaded by
any of them.
Our reasonableness review is guided by the factors in 18 U.S.C. § 3553(a).
United States v. Booker, 543 U.S. 220, 261 (2005); United States v. Winingear,
422 F.3d 1241, 1245 (11th Cir. 2005). And our “[r]eview for reasonableness is
deferential.” United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). “[T]he
party who challenges the sentence bears the burden of establishing that the
sentence is unreasonable in the light of both th[e] record and the factors in section
3553(a).” Id. These factors include the following:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant;
(2) the need for the sentence imposed--
(A) to reflect the seriousness of the offense, to promote respect
for the law, and to provide just punishment for the offense;
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(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant;
and
(D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional
treatment in the most effective manner;
(3) the kinds of sentences available;
....
(7) the need to provide restitution to any victims of the offense.
18 U.S.C. § 3553(a). Although sentencing courts must be guided by these factors,
“nothing in Booker or elsewhere requires the district court to state on the record
that it has explicitly considered each of the § 3553(a) factors or to discuss each of
the § 3553(a) factors.” United States v. Scott, 426 F.3d 1324, 1329 (11th Cir.
2005); United States v. Robles, 408 F.3d 1324, 1328 (11th Cir. 2005) (stating that,
post-Booker, district courts need not conduct an accounting of every § 3553(a)
factor and expound on how each factor played a role in the sentencing decision).
Based on our careful review, with particular attention to the sentencing
transcript and the PSI, we readily conclude that Freeman’s sentence is reasonable.
The district court explicitly stated that it had consulted § 3553(a) prior to imposing
a sentence that fell within the advisory Guidelines range. Cf. Talley, 431 F.3d at
788 (observing that “when the district court imposes a sentence within the advisory
Guidelines range, we ordinarily will expect that choice to be a reasonable one”).
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Before announcing its sentence, the court considered the testimony of Dr. Imhoff,
Freeman’s mother, and Freeman, and heard Freeman’s arguments, all of which
pertained to “the nature and circumstances of the offense and the history and
characteristics of the defendant,” within the meaning of § 3553(a)(1), since they
concerned Freeman’s family and work responsibilities, his diagnosis for paraphilia,
and his remorse and desire for rehabilitation. Moreover, in imposing sentence, the
district court highlighted the serious nature of Freeman’s crime involving a
“history of deviant sexual conduct,” including “the 83 images of child pornography
that were found on his computer, in addition to the offenses for which he stands
before the Court and the approximately 14 chatroom conversations in which
[Freeman] explicitly discusses and solicits sexual conduct with persons
representing themselves to be minor females.” Cf. 18 U.S.C. § 3553(a)(2)
(discussing factors pertaining to need for sentence imposed “to reflect the
seriousness of the offense, to promote respect for the law, and to provide just
punishment for the offense” and “to afford adequate deterrence to criminal
conduct” and “to protect the public from further crimes of the defendant”).
We also note that the life term of supervised release is entirely consistent
with both defense counsel’s argument and Freeman’s mother’s testimony in favor
of continued monitoring rather than a longer term of imprisonment. Cf. id. at §
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3553(a)(2)(D) (discussing need for sentence “to provide the defendant with needed
educational or vocational training, medical care, or other correctional treatment in
the most effective manner”). Finally, the parties’ arguments and the PSI’s
calculations outlined “the kinds of sentences available,” as discussed in §
3553(a)(3). On this record, Freeman’s sentence was reasonable.
Freeman’s argument that the district court failed to apply a preponderance-
of-the-evidence standard in imposing a life term of supervised release is without
merit. The government bears the burden of proving the applicability of guidelines
that enhance a defendant’s offense level. United States v. Cataldo, 171 F.3d 1316,
1321 (11th Cir. 1999). The district court’s factual findings for purposes of
sentencing may be based on, among other things, evidence heard during trial,
undisputed statements in the PSI, or evidence presented during the sentencing
hearing. United States v. Saunders, 318 F.3d 1257, 1271 n. 22 (11th Cir. 2003).
It is well-settled that where a defendant does not object to the facts of the
PSI, they are deemed admitted for Booker purposes. See United States v. Shelton,
400 F.3d 1325, 1330 (11th Cir. 2005) (holding that a defendant admits to the PSI’s
factual statements about his relevant conduct where he raises no objections to those
statements). “It is also established law that the failure to object to a district court’s
factual findings precludes the argument that there was error in them.” United States
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v. Wade, --- F.3d ---, 2006 WL 2195284, at *3 (11th Cir. Aug. 4, 2006) (citing
United States v. Weir, 51 F.3d 1031, 1033 (11th Cir. 1995); United States v.
Norris, 50 F.3d 959, 962 (11th Cir. 1995)). In the case at bar, the facts stated in
the PSI, upon which the district court made its factual findings, were admitted and
deemed established because Freeman made no objection to “the Court’s finding of
facts and conclusions of law. . .[or] to the manner in which [the] sentence was
imposed,” when specifically asked whether he wished to do so. See DE:51 at 22.
Thus, the district court properly made and considered the factual findings
supporting a life term of supervised release.
AFFIRMED.
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