[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-15246
MAY 21, 2008
Non-Argument Calendar
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 07-60161-CR-JAL
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BENJAMIN MANDLI,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 21, 2008)
Before TJOFLAT, BLACK and KRAVITCH, Circuit Judges.
PER CURIAM:
Benjamin Mandli appeals his 78-month sentence, imposed after he pleaded
guilty to knowingly and intentionally possessing material containing images of
child pornography that had been transported in interstate and foreign commerce via
the Internet, in violation of 18 U.S.C. § 2252A(a)(5)(B), (b)(2). On appeal, he
argues that the sentence imposed, which was at the lowest end of his sentencing
range, is procedurally and substantively unreasonable,1 in part, because the district
court: (1) refused to consider his diminished mental capacity, due to Asperger’s
Syndrome; (2) failed to consider the factors of 18 U.S.C. § 3553(a); (3) ignored his
uncontested evidence that (a) he posed no risk to recidivism and (b) he is likely to
become a victim in a prison setting; and (4) incorrectly concluded that it was
prohibited from imposing a variant sentence based on 18 U.S.C. § 3553(b)(2)(A).2
Following United States v. Booker, 543 U.S. 220, 1125 S.Ct. 738,
160 L.Ed.2d 621 (2005), we review sentences for reasonableness, United States v.
1
Mandli also argues that the district court erred by not imposing a downward departure
for diminished mental capacity, presumably pursuant to U.S.S.G. § 5K2.13. Because the district
court recognized its authority to depart downward, but concluded that a departure was not
appropriate, we lack jurisdiction to review this claim. See United States v. Dudley, 463 F.3d
1221, 1228 (11th Cir. 2006).
2
Pursuant to 18 U.S.C. § 3553(b)(2)(A), in imposing sentence on a defendant convicted
of an offense such as Mandli’s, “the court shall impose a sentence of the kind, and within the
range, referred to in subsection (a)(4)” unless certain exceptions, not applicable to the instant
case, apply. 18 U.S.C. § 3553(b)(2)(A) (emphasis added). The PSI, as adopted by the court,
suggested at one point it “appear[ed]” that the court was precluded under § 3553(b)(2)(A) from
imposing a variance, but neither the parties nor the district court explicitly mentioned the
applicability of § 3553(b)(2)(A), or this language in the PSI, during sentencing. Nor did the
court assert that it believed that it was statutorily barred from imposing a downward variance in
this case. Thus, there is nothing in the record to support Mandli’s assertion that the court
erroneously believed that it was statutorily barred from imposing a downward variance.
2
Talley, 431 F.3d 784, 785 (11th Cir. 2005). The Supreme Court recently clarified
that this standard is synonymous with the abuse of discretion standard. Gall
v. United States, 552 U.S. __, 128 S.Ct. 587, 596, 169 L.Ed.2d 445 (2007).3
In imposing a sentence, a district court first must correctly calculate a
defendant’s applicable Guideline range, and then must consider all of the factors
outlined in 18 U.S.C. § 3553(a) to arrive at an appropriate sentence. Gall, 128
S.Ct. at 596-97. These factors include: (1) the nature and circumstances of the
offense and the history and characteristics of the defendant; (2) the need to reflect
the seriousness of the offense, to afford adequate deterrence, to promote respect for
the law, to provide just punishment for the offense, to protect the public, and to
provide the defendant with needed educational or vocational training or medical
care; (3) the kinds of sentences available; (4) the Sentencing Guidelines range; (5)
pertinent Sentencing Commission policy statements; (6) the need to avoid
unwarranted sentencing disparities; and (7) the need to provide restitution to
victims. See 18 U.S.C. § 3553(a). After deciding on the appropriate sentence, the
district court must sufficiently explain the chosen sentence to permit meaningful
3
We note that Mandli (i) never expressly requested a downward variance before the
district court, but rather only sought a “downward Guideline departure sentence,” although he
did cite to Booker and to 18 U.S.C. § 3553(a); and (ii) never objected, after the district court
imposed sentence, that his 78-month sentence was procedurally or substantively unreasonable.
However, we need not decide whether Mandli’s failure in either or both of these regards dictates
that we apply plain error review because Mandli’s claim fails under either standard.
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appellate review and to promote the perception of fair sentencing. Gall, 128 S.Ct.
at 597.
Thus, our review is two-fold. First, we must ensure that the district court
committed no significant procedural error. Second, we must ensure that the
sentence imposed by the district court was substantively reasonable. Id.
A sentencing decision is procedurally sound if the district court correctly
calculated the defendant’s sentencing range, treated the Guidelines as advisory,
considered the § 3553(a) factors, selected a sentence that was not based on clearly
erroneous facts, and adequately explained the chosen sentence. Id.
A sentencing decision is substantively reasonable if the district court acted
within its discretion in determining that the § 3553(a) factors supported the
sentence. Id. at 600. A “district court need only ‘acknowledge’ that it ‘considered
the § 3553(a) factors[,]’ and need not discuss each of these factors in either the
sentencing hearing or in the sentencing order[.]” United States v. Amedeo,
487 F.3d 823, 833 (11th Cir.), cert. denied, 128 S.Ct. 671 (2007) (citations
omitted). “The weight to be accorded any given § 3553(a) factor is a matter
committed to the sound discretion of the district court.” United States v. Williams,
456 F.3d 1353, 1363 (11th Cir. 2006), abrogated on other grounds by Kimbrough
v. United States, __ U.S. __, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). “‘[I]t is not
4
the role of an appellate court to substitute its judgment for that of the sentencing
court as to the appropriateness of a particular sentence.’” United States v. Melvin,
187 F.3d 1316, 1323 (11th Cir. 1999) (citation omitted) (alteration in original).
Thus, we will reverse a procedurally proper 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.”
Williams, 456 F.3d at 1363.
Upon review, we conclude that Mandli’s sentence was procedurally sound.
Mandli does not dispute that the district court correctly calculated the guidelines
range. And, the court considered Mandli’s arguments and evidence as to a
reasonable sentence, acknowledged that the Guidelines were advisory, and
reasoned that a sentence at the low end of the guidelines range was appropriate in
light of the § 3553(a) factors, the advisory Guidelines concerning child sexual
offenses, the statements of the parties, the evidence presented. The court’s
explanation of its reasons was sufficient. Rita v. United States, 551 U.S. __, 127
S.Ct. 2456, 2468-69, 168 L.Ed.2d 203 (2007) (finding that a lengthy explanation is
not necessarily required when a court decides to follow the Guidelines in a
particular case, particularly where the court has listened to parties’ arguments,
5
considered the supporting evidence, and was aware of the defendant’s special
conditions).
Furthermore, we conclude that Mandli’s sentence is substantively
reasonable. First, the district court imposed the 78-month sentence only after
listening to and considering the parties’ evidence and arguments as to a reasonable
sentence. Second, the court noted that it considered the sentence imposed to be
appropriate in light of the § 3553(a) factors, and specifically listed three of those
factors. Although the district court did not explicitly mention every § 3553(a)
factor, it was not required to do so, and “[t]he weight to be accorded any given
§ 3553(a) factor is a matter committed to the sound discretion of the district court.”
Williams, 456 F.3d at 1363.
Third, contrary to Mandli’s arguments on appeal, the district court never
explicitly indicated that it was prohibited from considering diminished capacity in
determining whether a variance was appropriate, but rather expressly stated that it:
(1) understood that Mandli had disorders that need to be dealt with; (2) considered
his nature and circumstances, which presumably would have encompassed his
diminished mental capacity; and (3) considered the testimony of his psychiatrist.
Finally, the sentenced imposed, which was at the low end of the guidelines
range, was substantially less than the offense’s statutory maximum of 120-months’
6
imprisonment. Accordingly, we AFFIRM Mandli’s 72-month sentence as
reasonable.
7