USCA11 Case: 21-11936 Date Filed: 12/16/2021 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11936
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTOPHER TED DULUK,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 2:20-cr-00085-SPC-NPM-1
____________________
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2 Opinion of the Court 21-11936
Before ROSENBAUM, LUCK, and LAGOA, Circuit Judges.
PER CURIAM:
Christopher Duluk appeals his conviction and 84-month
sentence for possessing child pornography. He raises two argu-
ments on appeal. First, Duluk argues that the district court abused
its discretion by denying him a Franks1 hearing. Second, Duluk
argues that his sentence is substantively unreasonable.
I.
We review for abuse of discretion a district court’s denial of
a Franks hearing. United States v. Barsoum, 763 F.3d 1321,
1329 (11th Cir. 2014). We view the facts in the light most favorable
to the prevailing party in the district court. See United States v.
Capers, 708 F.3d 1286, 1295-96 (11th Cir. 2013).
To justify a Franks hearing, the defendant must make a “sub-
stantial preliminary showing” that an officer put in an affidavit, ei-
ther intentionally or with reckless disregard for the truth, false
statements that were necessary to the finding of probable cause for
a search warrant. Franks, 438 U.S. at 155-56. The defendant fails
to make this showing if he does not provide an affidavit or other
sworn statement that the officer-affiant knowingly or recklessly in-
cluded false statements in the affidavit. United States v. Arbolaez,
450 F.3d 1283, 1294 (11th Cir. 2006). When assessing materiality,
1 Franks v. Delaware, 438 U.S. 154 (1978).
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21-11936 Opinion of the Court 3
the trial court must disregard those portions of the affidavit that the
defendant has shown are arguably false and misleading. Barsoum,
763 F.3d at 1328-29. The defendant then bears the burden of show-
ing that, absent those misrepresentations, the affidavit would not
have established probable cause. Id. We uphold a district court’s
determination that an affiant’s misrepresentations were not reck-
less or intentional unless that finding was clearly erroneous.
United States v. Reid, 69 F.3d 1109, 1113 (11th Cir. 1995).
To establish probable cause for a search warrant, the sup-
porting affidavit must establish a “fair probability” that evidence of
a crime or contraband will be found in a particular place. See Illi-
nois v. Gates, 462 U.S. 213, 238 (1983). We give great deference to
a determination of probable cause by the district court. United
States v. Shabazz, 887 F.3d 1204, 1214 (11th Cir. 2018). An affidavit
supporting a search warrant enjoys a presumption of validity.
Franks, 438 U.S. at 171.
Here, the district court did not abuse its discretion by deny-
ing Duluk’s request for a Franks hearing because he failed to make
an offer of proof that Deputy Calhoun intentionally lied or reck-
lessly disregarded the truth in his affidavit. Duluk’s only offer of
proof was his investigator’s affidavit, which alleged that the official
“Notice of Reassignment of Permanent Florida Governmental
Agency License Plate” form (“License Plate Form”) was identical
to the copy found in Duluk’s car. However, this affidavit failed to
show how, or even allege that, Deputy Calhoun intentionally lied
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4 Opinion of the Court 21-11936
or recklessly disregarded the truth in his affidavit in support of the
search warrant.
Even if Duluk had made a sufficient offer of proof, the dis-
trict court did not err by finding that he failed to meet his burden
of showing that the challenged statements were material to the
finding of probable cause. Without the allegedly false statements
concerning the License Plate Form, the ten-page affidavit suffi-
ciently established a fair probability that evidence of impersonating
law enforcement and possessing an illegal license plate would be
found on the thumb drive.
II.
We review for abuse of discretion the substantive reasona-
bleness of a district court’s sentence. United States v. Trailer,
827 F.3d 933, 935 (11th Cir. 2016). In doing so, we consider the
totality of the circumstances and the § 3553(a) factors. Id. at 936.
The party challenging the sentence must show that the sentence is
unreasonable considering the record and the § 3553(a) factors.
United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). The
district court abuses its discretion if it “fails to afford consideration
to relevant factors that were due significant weight.” United States
v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (quotation
marks omitted). The district court is required to impose only a
reasonable sentence, not the most appropriate one. Id. at 1191.
The district court must impose a sentence that is sufficient,
but not greater than necessary, to comply with the sentencing
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21-11936 Opinion of the Court 5
factors listed in 18 U.S.C. § 3553(a), including the history and char-
acteristics of the defendant and the need to avoid unwarranted sen-
tence disparities. Nevertheless, a district court need not address
every factor; rather, simply acknowledging that it considered the
§ 3553(a) factors and the parties’ arguments is sufficient. United
States v. Tinker, 14 F.4th 1234, 1241 (11th Cir. 2021). The weight
given to any § 3553(a) factor is left to the sound discretion of the
district court, and we will not substitute our own judgment by re-
weighing the factors. United States v. Kuhlman, 711 F.3d 1321,
1327 (11th Cir. 2013). We will vacate the defendant’s sentence only
if 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.” Trailer,
827 F.3d at 936 (quotation marks omitted).
A United States Sentencing Commission report described
the U.S.S.G. § 2G2.2 enhancements as “outdated and dispropor-
tionate.” United States v. Cubero, 754 F.3d 888, 898 (11th Cir.
2014) (quotation marks omitted). However, this report did not in-
validate § 2G2.2 or alter “the district court’s sentencing duties or
discretion in any way.” Id. at 900.
Here, we conclude that the district court did not impose a
substantively unreasonable sentence. First, the district court
acknowledged Duluk’s policy disagreements with the § 2G2.2 en-
hancements but ultimately found that the enhancements were ap-
propriately scored. Second, Duluk’s character evidence and the
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6 Opinion of the Court 21-11936
need to avoid unwarranted sentence disparities were only a couple
factors that the district court had broad discretion to weigh, and it
did not abuse that discretion by acknowledging Duluk’s arguments
and choosing to give other factors more weight. Accordingly, for
the reasons discussed above, we affirm Duluk’s conviction and 84-
month sentence.
AFFIRMED.