[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 21, 2009
No. 09-10531 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-20727-CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD L. GRASS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 21, 2009)
Before BIRCH, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Richard L. Grass appeals his 324-month sentence for knowingly attempting
to transfer obscene materials to a minor under age 16, in violation of 18 U.S.C. §
1470, and knowingly distributing a visual depiction of a minor engaged in sexually
explicit conduct, in violation of 18 U.S.C. § 2252(a)(1). Glass argues that his
sentence is procedurally and substantively unreasonable because guideline
enhancements applied to him effectively apply in every child pornography case,
rather than exceptional ones, because the sentence failed to take into consideration
the sentencing factors found in 18 U.S.C. § 3553(a), and because his sentence is
excessive under the particular facts of this case.
When reviewing a district court’s sentencing decision, we apply an abuse-of-
discretion standard, checking first for procedural soundness and then for
substantive reasonableness. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir.
2008). “[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).” United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
In considering the procedural soundness of a sentence, we verify “‘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.’”
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Id. (quoting Gall v. United States, 552 U.S. 38,__, 128 S. Ct. 586, 597 (2007)). A
district court is not normally required “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). Indications
in the record that the district court properly considered the § 3553(a) factors and
the advisory Guidelines range will suffice. Id.
In considering the substantive reasonableness of a sentence, we employ an
abuse-of-discretion standard “[r]egardless of whether the sentence imposed is
inside or outside of the Guidelines range.” Gall, 552 U.S. at __, 128 S.Ct. at 597.
Although we do not apply the rule that a sentence within the Guidelines range is
per se reasonable, we would ordinarily expect a sentence within the Guidelines
range to be reasonable. Talley, 431 F.3d at 787-88. “The fact that [an] appellate
court might reasonably have concluded that a different sentence was appropriate is
insufficient to justify reversal of the district court.” Gall, 552 U.S. at __, 128 S.Ct.
at 597.
Here, the district court did not abuse its discretion in imposing a sentence at
the low end of the Guidelines range. The district court adopted the facts set forth
in the revised Presentence Investigation Report, which had not been challenged or
objected to, reviewed the properly calculated advisory Guidelines range, and
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considered the § 3553(a) factors in arriving at its sentencing decision. The district
court heard and considered testimony presented by Grass in favor of a below
Guidelines sentence. The district court correctly deemed Grass’s argument
regarding the Guidelines enhancements to be a § 3553 proportionality argument
and considered it along with the remaining factors. Conceding that the sentence
recommended under the Guidelines is “extremely long,” the district court
nonetheless reasoned that a within-range sentence was appropriate here given
Grass’s prior indecent exposure convictions, the nature and seriousness of the
crimes at issue, including Grass’s professed willingness to meet with underage
girls and his statements about past activities with minors, and the need to protect
the public from Grass. We therefore find no basis on which to conclude that the
district court made a clear error in judgment in weighing the § 3553(a) factors, and
the court’s decision is entitled to due deference. See Pugh, 515 F.3d at 1191.
Because the district court properly considered the advisory Guidelines range and
the statutory factors found in § 3553(a), the sentence imposed was not an abuse of
the district court’s discretion.
Upon review of the record and consideration of the parties’ briefs, we affirm
the sentence.
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AFFIRMED.1
1
Grass’s request for oral argument is denied.
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