[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 9, 2007
No. 06-14871 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00225-CR-T-24MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH HAYNES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 9, 2007)
Before BIRCH, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Joseph Haynes appeals his 78-month sentence, imposed upon resentencing,
for knowingly attempting to entice a minor to engage in a sexual act by using a
facility of interstate commerce, in violation of 18 U.S.C. § 2422(b). After review,
we affirm.
I. BACKGROUND
Haynes, who was 47 years old at the time, contacted and participated in
online chats with “kaci_fl_gurl,” an undercover Federal Bureau of Investigation
agent posing online as a 14-year-old girl. Haynes discussed with “Kaci,” among
others, his desire to teach her about sex and to perform various sexual activities
with her.
A jury convicted Haynes of one count of knowingly attempting to entice a
minor to engage in a sexual act by using a facility of interstate commerce. At his
first sentencing, Haynes objected to various sentencing enhancements under the
Sentencing Guidelines recommended in his presentence investigation report
(“PSI”), including a 2-point enhancement for unduly influencing a minor, pursuant
to U.S.S.G. § 2A3.2(b)(2)(B) (2003). The district court overruled his objections.
With a total offense level of 27 and a criminal history category of I, Haynes’s
guidelines range was 70 to 87 months. The district court sentenced Haynes to a
78-month sentence.
Haynes appealed his sentence and conviction. This Court affirmed his
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conviction, but vacated his sentence and remanded for resentencing in light of
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). In so doing, the
Court noted that there was sufficient evidence for the district court to apply the
U.S.S.G. § 2A3.2(b)(2)(B) enhancement, but that by applying the enhancement
under a mandatory regime, the district court had committed constitutional Booker
error. The Court concluded, therefore, that “[t]he district court correctly
calculated Haynes’s guidelines range as 70 to 87 months and need not revisit the
guidelines calculations . . . .”
On remand, Haynes contested the 2-point enhancement under U.S.S.G. §
2A3.2(b)(2)(B) on grounds that Haynes had not actually intended to unduly
influence a minor. The district court reminded Haynes that it would not reconsider
the guidelines calculations. Haynes explained that his argument was directed
toward consideration of the 18 U.S.C. § 3553(a) factors and imposing a reasonable
sentence. Haynes requested the statutory mandatory minimum sentence of 60
months’ imprisonment.
The district court stated that, after considering the § 3553(a) factors, it was
inclined, if anything, to impose a sentence above the advisory guidelines range.
The district court noted that it had specifically considered: (1) Haynes’s history;
(2) the seriousness of the offense; and (3) the need to promote respect for the law
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and to provide just punishment. The district court re-imposed a 78-month
sentence. Haynes filed this second appeal.
II. DISCUSSION
On appeal, Haynes argues that his sentence is unreasonable because the
district court failed to adequately explain the reasons for the sentence it imposed or
acknowledge Haynes’s arguments for a lesser sentence.1
After Booker, a district court, in determining a reasonable sentence, must
consider the correctly calculated advisory guidelines range and the § 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).
We review a defendant’s ultimate sentence for reasonableness in light of the
§ 3553(a) factors. United States v. Williams, 435 F.3d 1350, 1353 (11th Cir.
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Haynes also argues that the district court improperly applied the 2-point undue influence
of a minor enhancement pursuant to U.S.S.G. § 2A3.2(b)(2)(B). However, this issue is
foreclosed by the law-of-the-case doctrine. See United States v. Tamayo, 80 F.3d 1514, 1520
(11th Cir. 1996). This issue was raised in Haynes’s first appeal. This Court concluded that there
was sufficient evidence to support the § 2A3.2(b)(2)(B) enhancement and that the guidelines
range had been calculated correctly. Moreover, our limited remand was solely for the district
court to consider that correctly calculated advisory guidelines range and the other § 3553(a)
factors in determining a reasonable sentence post-Booker.
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2006). This “[r]eview for reasonableness is deferential,” 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 788. “[T]he party
who challenges 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).”
Id.
Here, Haynes has not shown that his 78-month sentence was unreasonable.
The district court explicitly noted that it had considered the § 3553 factors and
specifically addressed Haynes’s history, the nature and circumstances of his
offense and the need to promote respect for the law and to provide just punishment.
See Scott, 426 F.3d at 1329-30; 18 U.S.C. § 3553(a)(1), (2). The district court did
not, and was not required to, discuss each § 3553(a) factor or address every
argument urged by Haynes in mitigation.
AFFIRMED.
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