United States v. Jordan Peterson

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 24, 2007
No. 06-12818 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 05-00113-CR-FTM-33-SPC

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JORDAN PETERSON,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________

(January 24, 2007)

Before BARKETT, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

Jordan Peterson appeals his 87-month sentence for possession of materials

involving and depicting minors engaged in sexually explicit conduct, in violation
of 18 U.S.C. §§ 2252(a)(4)(B) and 2252(b)(2). Peterson argues on appeal that his

sentence is procedurally unreasonable because (1) the district court imposed a

predetermined, rigid sentencing policy, (2) considered the 18 U.S.C. § 3553(a)

factors only to determine where within the guidelines range to sentence him, and

(3) relied on statements from his ex-wife that had not been proven by a

preponderance of the evidence. Peterson also argues that his sentence is

substantively unreasonable.

We review a preserved Booker claim on appeal de novo and reverse only for

harmful error. United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005). In

Booker the Supreme Court (1) held that pursuant to the mandatory Sentencing

Guidelines, the Sixth Amendment was violated when a sentence was enhanced

based solely on judicial fact-finding; and (2) rendered the Sentencing Guidelines

advisory only. United States v. Booker, 543 U.S. 220, 233-35, 259-60, 125 S.Ct.

738, 749-51, 764, 160 L.Ed.2d 621 (2005). Although now advisory, the guideline

range is still an important factor that the sentencing court must consider, along

with the other § 3553(a) factors. Id. at 258-60, 125 S.Ct. at 764-65.

We have recognized two types of Booker errors: (1) a Sixth Amendment,

constitutional error of enhancing a defendant's sentence using judge-found facts

under a mandatory guideline system; and (2) a statutory error of applying the now

2
advisory guidelines as mandatory. United States v. Shelton, 400 F.3d 1325,

1330-31 (11th Cir. 2005). The use of extra-verdict enhancements in an advisory

guidelines scheme, however, is not unconstitutional. United States v. Rodriguez,

398 F.3d 1291, 1300 (11th Cir. 2005). A district court may determine

enhancements based on a preponderance of the evidence standard as long as the

guidelines are applied in an advisory fashion. United States v. Chau, 426 F.3d

1318, 1323-24 (11th Cir. 2005).

The district court is obligated "to calculate correctly the sentencing range

prescribed by the Guidelines." United States v. Crawford, 407 F.3d 1174, 1178

(11th Cir. 2005). "After it has made this calculation, the district court may impose

a more severe or more lenient sentence as long as the sentence is reasonable." Id.

at 1179. "[A] district court's determination that the Guidelines range fashions a

reasonable sentence [ ] necessarily must be a case-by-case determination." Hunt v.

United States, 459 F.3d 1180, 1184-85 (11th Cir. 2006). So long as the § 3553(a)

factors are considered, a district court may determine, in each particular case, the

appropriate weight to give the Guidelines. Id. at 1185.

Here, the district court explicitly noted that it was fully aware of the

advisory nature of the Guidelines and recognized its ability to depart upward or

downward. Although the subject of Peterson's sexual relationship with his ex-wife

3
and her sister was discussed at the sentencing hearing, the court explicitly stated

that its reason for the sentence was because there were 17,500 images and the

depictions in the images were so obviously painful to the children. Further, the

court imposed a sentence that was in the middle of the Guidelines range.

In addition, the district court determined that the Guidelines range was

appropriate in this case. The court made some statements that could be interpreted

as presumptions in favor of the Guidelines. Ultimately, however, the court's

decision to defer to the Guidelines was case-specific after properly consulting the

§ 3553(a) factors. Therefore, because the court's decision to defer to the

Guidelines was case-specific and based on consideration of the § 3553(a) factors,

Peterson's sentence was procedurally reasonable.

The second issue on appeal is whether Peterson’s sentence was substantively

reasonable. Pursuant to the Supreme Court's instructions in Booker, the final

sentence, in its entirety is reviewed for reasonableness, in light of the § 3553(a)

factors. United States v. Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005). “[T]he

party who challenges the sentence bears the burden of establishing that the

sentence is unreasonable in light of both [the] record and the factors in section

3553(a).” United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). Some of

the § 3553(a) factors include the nature and circumstances of the offense, the

4
history and characteristics of the defendant, the need for adequate deterrence and

protection of the public, the pertinent Sentencing Commission policy statements,

and the need to avoid unwarranted sentencing disparities. See 18 U.S.C. § 3553(a).

The reasonableness review is “deferential” and focuses on whether the sentence

imposed achieves the purposes of sentencing as stated in § 3553(a). Talley, 431

F.3d at 788.

“[N]othing 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). Moreover, a sentence within the guidelines range is not per se

reasonable, although "there is a range of reasonable sentences from which the

district court may choose, and when the district court imposes a sentence within the

advisory Guidelines range, we ordinarily will expect that choice to be a reasonable

one." Talley, 431 F.3d at 787-88. Also, as to the weight to give the Guidelines

relative to the other § 3553(a) factors, we have stated that we do “not believe that

any across-the-board prescription regarding the appropriate deference to give the

Guidelines is in order,” however, we have also stated that there are many reasons a

district court may choose to follow the Guidelines in a particular case. Hunt, 459

F.3d at 1184.

5
 In this case, Peterson has not met his burden of establishing that the sentence

imposed was substantively unreasonable. The court explicitly referenced the

§ 3553(a) factors. The court considered the nature and circumstances of the

offense and the history and characteristics of Peterson, noting that it had

considered the support and testimony of his friends and colleagues, his age, and his

employment history, which appear to be Peterson's strongest positive factors.

After considering the evidence of Peterson's history and characteristics, the court

imposed a mid-range sentence. Of particular importance to the court, however,

was the need to protect the children victims, which it discussed at length. The

court considered permissible factors, the sentence imposed is within the Guidelines

range, it does not exceed the 10-year statutory maximum, and it achieves the

purposes of sentencing stated in § 3553(a).

Upon careful review of the record and upon consideration of the parties’

briefs, we find no reversible error. For the above reasons, we affirm.

AFFIRMED.

6