[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 19, 2008
No. 08-12162 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00331-CR-T-27-TGW
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JULIAN RUSSELL CLAWSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 19, 2008)
Before BLACK, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Julian Russell Clawson appeals his 78-month sentence for possession of
child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2). On
appeal, Clawson challenges the reasonableness of his sentence. Clawson argues
that his sentence was unreasonable and greater than necessary to satisfy the
statutory objectives of § 3553(a). While Clawson does not dispute his Guidelines
calculation, he challenges the district court’s adherence to the Guidelines range in
light of the nature of his offense, his unique history, and the alleged inherent flaws
in U.S. S ENTENCING G UIDELINES M ANUAL § 2G2.2.
Clawson’s sentence is subject to review for reasonableness. United States v.
Talley, 431 F.3d 784, 785 (11th Cir. 2005) (per curiam). Reasonableness review
requires the application of an abuse-of-discretion standard. Gall v. United States,
128 S. Ct. 586, 594 (2007).
[We] must first ensure that the district court committed no significant
procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence--including an explanation for any
deviation from the Guidelines range.
Id. at 597. If the district court’s decision is procedurally reasonable, our analysis
then turns to the substantive reasonableness of the sentence. Id.
“In reviewing the ultimate sentence imposed by the district court for
reasonableness, we consider the final sentence, in its entirety, in light of the
2
§ 3553(a) factors.” United States v. Thomas, 446 F.3d 1348, 1351 (11th Cir.
2006). “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. Clay,
483 F.3d 739, 743 (11th Cir. 2007) (internal quotation marks omitted). However,
“[w]e may find that a district court has abused its considerable discretion if it has
weighed the factors in a manner that demonstrably yields an unreasonable
sentence.” United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008).
“[O]rdinarily, we would expect a sentence within the Guidelines range to be
reasonable.” 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. The § 3553(a) 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 promote respect for the law,
and to provide just punishment for the offense; (3) the need for deterrence; (4) the
need to protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of sentences
available; (7) the Sentencing Guidelines range; (8) pertinent policy statements of
the Sentencing Commission; (9) the need to avoid unwanted sentencing disparities;
3
and (10) the need to provide restitution to victims.” Id. at 786 (summarizing 18
U.S.C. § 3553(a)).
After correctly calculating Clawson’s Guidelines range, the district court
considered the § 3553(a) factors. The district court considered “the history and
characteristics of the defendant,” noting his honorable military career, his difficult
childhood, his amenability to treatment, and the difficult circumstances with which
he was face at the time the crime was committed. The district court also
considered the seriousness of the crime, the need for deterrence, and the need to
protect the public. The district court then sentenced Clawson at the bottom of the
Guidelines range.
The record demonstrates that Clawson’s sentence suffered from no
procedural error, as the district court correctly calculated the Guidelines range,
considered the Guidelines advisory, and took into account the § 3553(a) factors.
Likewise, Clawson has not carried his burden of establishing that his 78 month
sentence, which was at the bottom of the applicable Guidelines range, was
substantively unreasonable. Because we “ordinarily . . . expect a sentence within
the Guidelines range to be reasonable,” and because the district court considered
the § 3553(a) factors, we conclude that the district court’s sentence was reasonable.
Talley, 431 F.3d at 788.
4
Additionally, Clawson’s argument that the district court erred in adhering to
the Guidelines because of the inherent flaws in § 2G2.2 is unavailing. Defining
and fixing penalties for federal crimes are Congressional, not judicial, functions.
United States v. Evans, 333 U.S. 483, 486, 68 S. Ct. 634, 636 (1948). See also
Mistretta v. United States, 488 U.S. 361, 377-78, 109 S. Ct. 647, 658 (1989)
(noting that Congress has given the Sentencing Commission the discretion to
determine the relative severity of federal crimes, assess the relative weight of the
offender characteristics, and decide which types of crimes are to be considered
similar for the purposes of sentencing). We decline to hold either that § 2G2.2 is
flawed or that the district court abused its discretion by relying on a section of the
Sentencing Guidelines. The district court was correct to rely on § 2G2.2 when
sentencing.
CONCLUSION
Having reviewed the record and the briefs of the parties, we discern no error.
Accordingly, we affirm Clawson’s sentence.
AFFIRMED.
5