[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 11, 2007
No. 06-13618 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00278-CR-JOF-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STUART MANLEY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(May 11, 2007)
Before ANDERSON, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Stuart Manley appeals his 360-month sentence imposed after he pled guilty
to child pornography charges. On appeal, Manley argues that the district court
(1) erred in calculating his advisory guidelines range; and (2) imposed an
unreasonable sentence. After review, we affirm.
I. BACKGROUND
On May 6, 2005, Defendant Manley contacted an undercover FBI Cyber
Crime/Innocent Images Task Force Agent (“UCA”) in an America Online chat
room. The UCA was posing as a 33-year-old female with a 12-year-old daughter.
Through a series of online chats, Manley expressed his desire to engage in sexual
activity with both the UCA and her daughter and advised that the UCA also could
have sex with Manley’s 12-year-old son.1 Manley sent the UCA multiple emails
containing images of child pornography, including some images of Manley’s son
with his penis exposed.
Manley, who resided in Texas, arranged to meet the UCA and her daughter
on May 20, 2005, at a restaurant near Atlanta, Georgia. Manley was arrested by
FBI Agents at the restaurant without incident. A subsequent search of Manley’s
hotel room resulted in the seizure of several items, including a laptop computer,
two “thumb drives,” and several items associated with sexual activity. It was later
determined that Manley’s laptop computer and one of the thumb drives contained a
1
Although Manley reported to the UCA that his son was 12 years old, it was later
determined that Manley’s son was born on August 10, 1993, and therefore, was only 11 years
old at the time of the offense in May 2005.
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total of 401 images of child pornography, including some images of Manley’s son.
A federal grand jury returned a three-count indictment, charging Manley
with (1) using a means of interstate commerce to entice a minor to engage in
sexual activity, in violation of 18 U.S.C. § 2422(b); (2) transporting child
pornography in interstate commerce, in violation of 18 U.S.C. § 2252A(a)(1); and
(3) distributing child pornography in interstate commerce, in violation of 18 U.S.C.
§ 2252A(a)(2)(A). Manley pled guilty without a plea agreement.
The presentence investigation report (“PSI”) recommended a base offense
level of 32, pursuant to U.S.S.G. § 2G2.1(a). The PSI also recommended the
following enhancements to Manley’s base offense level: (1) 4 levels, pursuant to
§ 2G2.1(b)(1)(A), because the offense involved a minor who had not attained the
age of twelve years; (2) 2 levels, pursuant to § 2G2.1(b)(2)(A), because the offense
involved the commission of a sexual act or sexual contact; (3) 2 levels, pursuant to
§ 2G2.1(b)(3), because the offense involved distribution; (4) 4 levels, pursuant to
§ 2G2.1(b)(4), because the offense involved material that portrays sadistic or
masochistic conduct or other depictions of violence; (5) 2 levels, pursuant to
§ 2G2.1(b)(5), because Manley was the parent of a minor involved in the offense;
and (6) 2 levels, pursuant to § 2G2.1(b)(6)(B), because Manley used a computer to
persuade, induce, entice, or coerce a minor to engage in sexually explicit conduct.
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After application of these various specific offense characteristics, Manley’s
adjusted offense level was 48. The PSI then recommended that Manley’s offense
level be (1) reduced by 3 levels, pursuant to U.S.S.G. § 3E1.1, for acceptance of
responsibility; and (2) enhanced by 5 levels, pursuant to U.S.S.G. § 4B1.5(b),
because Manley was considered a repeat and dangerous sex offender against
minors under the Sentencing Guidelines. Accordingly, Manley’s total offense
level was 50.
The PSI also concluded that Manley had a total of 11 criminal history points,
including 2 points for committing the instant offense while Manley was on parole,
resulting in a criminal history category of V. With a total offense level of 50 and a
criminal history category of V, Manley’s advisory guidelines range was life
imprisonment.2 However, the combined statutory maximum sentence for Manley’s
three counts of conviction was 70 years’ imprisonment; thus Manley’s advisory
guidelines sentence also was 70 years, or 840 months. See U.S.S.G. § 5G1.1(a).
At sentencing, Manley raised several objections to the PSI. In relevant part,
Manley objected to (1) the 4-level enhancement that was based on his offense
involving images that portray sadistic or masochistic conduct; and (2) the 2-point
2
Because Manley’s total offense level was more than 43, it was treated as an offense level
of 43 for purposes of determining his advisory guidelines range. See U.S.S.G. ch. 5, pt. A, cmt.
n.2.
4
increase to his criminal history score for committing the instant offense while on
parole. The district court overruled these objections. In accordance with the PSI,
the district court determined that Manley had a total offense level of 50, a criminal
history category of V, and a maximum punishment of 70 years’ or 840 months’
imprisonment.
Manley then raised the following matters for the district court’s
consideration in determining an appropriate sentence: (1) the conditions of
Manley’s pre-trial confinement, because he was kept in a United States
Penitentiary as opposed to a local or regional jail, and therefore, subjected to
harsher conditions than most pre-trial defendants; (2) the fact that Manley was 64
years old and that prison will be hard and have a “more significant impact” on him
because of his age; and (3) that Manley should be sent to a facility where he can
get treatment instead of being placed in a traditional incarceration setting.
In response, the government argued that Manley’s statement of apology was
“disingenuous,” and that the statutory maximum sentence of 70 years’
imprisonment was appropriate given the seriousness of the offense, the need for
deterrence, and the need to protect society from further crimes.
In deciding what punishment to impose, the district court commented that
Manley had a predisposition to certain urges that could not be healed adequately by
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mental health treatment and, given his age, did not appear to diminish with the
passage of time. The district court stated, therefore, that “incapacitation drives the
sentence,” and that “Manley can’t be allowed out under conditions that he might
present a threat to children.” The district court noted, however, that “[a]s a
practical matter, any substantial sentence will amount to a life sentence,” and that
imposing an 840-month sentence would look like “grandstanding” and could cast a
bad light on the judicial system. Finally, the district court noted that the victims of
Manley’s abuse were seeking retribution, and that Manley’s sentence could
provide a general deterrence effect. Accordingly, the district court sentenced
Manley to 360 months’ imprisonment on Count One and 240 months’
imprisonment on Counts Two and Three, all to run concurrently, as well as 10
years’ supervised release.
Manley now appeals his sentence.
II. DISCUSSION
On appeal, Manley argues that the district court erred by (1) applying a
4-level enhancement to his offense level based on its finding that his offense
involved material that portrays sadistic or masochistic conduct or other depictions
of violence; (2) adding 2 points to his criminal history score for committing the
instant offense while on parole; and (3) imposing an unreasonable sentence.
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We need not address Manley’s first two arguments because, even assuming
arguendo that the district court erred in the two calculations in issue, any such error
was harmless. Even without the 4-level enhancement for material that portrays
sadistic or masochistic conduct and the 2 criminal history points, Manley still
would have had a total offense level of 46 and a criminal history category of IV,
which would have resulted in the same advisory guidelines sentence – life
imprisonment, reduced to 840 months’ imprisonment on account of the applicable
statutory maximum. Therefore, the district court’s guidelines calculations as to
these two issues, even if erroneous, did not affect Manley’s substantial rights and
would not require a reversal. See Fed. R. Crim. P. 52(a).
As for Manley’s final argument, after United States v. Booker, 543 U.S. 220,
125 S. Ct. 738 (2005), a district court, in determining a reasonable sentence, must
consider the correctly calculated advisory guidelines range and the 18 U.S.C.
§ 3553(a) factors. United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005).
Although the district court must consider the § 3553(a) 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). Instead,
indications in the record that the district court considered facts and circumstances
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falling within § 3553(a)’s factors will suffice. Talley, 431 F.3d at 786; Scott, 426
F.3d at 1329-30.
After review, we conclude that Manley has not shown that his 360-month
sentence is unreasonable.3 The district court correctly determined that Manley’s
advisory guidelines sentence was 840 months’ imprisonment, but nevertheless
sentenced him to 360 months’ imprisonment, a substantial amount below the
guidelines sentence. Furthermore, although the district court did not, and was not
required to, discuss each § 3553(a) factor, the record clearly indicates that the
district court considered several facts and circumstances falling within § 3553(a)’s
factors, including (1) Manley’s age and the fact that his deviant urges have not
diminished with the passage of time, 18 U.S.C. § 3553(a)(1); (2) the need for the
sentence to protect the public from further crimes through the incapacitation of
Manley, id. § 3553(a)(2)(C); (3) the need for the sentence to provide just
punishment for the offense, including providing retribution for Manley’s victims,
id. § 3553(a)(2)(A); and (4) the need for the sentence to provide adequate
deterrence, id. § 3553(a)(2)(B). Moreover, by sentencing Manley below the
3
We review the defendant’s ultimate sentence for reasonableness in light of the § 3553(a)
factors. United States v. Williams, 435 F.3d 1350, 1353 (11th Cir. 2006). This “[r]eview for
reasonableness is deferential,” and the party challenging the sentence “bears the burden of
establishing that the sentence is unreasonable in the light of both [the] record and the factors in
section 3553(a).” Talley, 431 F.3d at 788.
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recommended guidelines sentence, the district court not only took into account the
Sentencing Guidelines, id. § 3553(a)(4), but also the need for the sentence to
promote respect for the law, id. § 3553(a)(2)(A). Under the facts and
circumstances of this case, Manley has failed to show that his 360-month sentence
is unreasonable.
AFFIRMED.
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