[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Oct. 20, 2009
No. 09-11197 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-00033-CR-RLV-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES BARTHOLOMEW HUSKEY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(October 20, 2009)
Before BARKETT, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
James Bartholomew Huskey appeals his sentence of 840 months of
imprisonment following his pleas of guilty to knowingly manufacturing child
pornography, knowingly distributing child pornography in interstate commerce,
and knowingly receiving child pornography in interstate commerce. 18 U.S.C. §§
2251(a), 2252A(a)(2)(A), 2256(8)(A). Huskey argues that his sentence is
unreasonable. We affirm.
The presentence investigation report detailed Huskey’s crimes, which are
heinous and despicable. The report stated that Huskey had sexually abused his
daughter between the ages of six and nine by subjecting her to anal and oral
sodomy and vaginal sex. Photographs and videotapes established that, over time,
Huskey’s abuse became more violent and that he had pressed a knife to his
daughter’s face, neck, and genitals, and she had appeared “distressed” in the
encounters. Huskey admitted to federal agents that he had penetrated his daughter
with objects to condition her for vaginal sex and that the molestation had become
more violent over time. Huskey also admitted that he had photographed and
videotaped the abuse to trade for other child pornography. Huskey’s daughter told
federal agents that she knew the abuse had been recorded and distributed on the
internet because Huskey had shown her pictures and videos.
The presentence report listed a base offense level of 32. The report
increased that level by 14 points for Huskey’s involvement as a parent, his
2
daughter’s age, his use of violence, his distribution of the child pornography, and
the sadistic conduct portrayed, and the report reduced the level by 3 points for
Huskey’s acceptance of responsibility and timely plea of guilt. With a criminal
history of I, the report listed an advisory guidelines sentence of life imprisonment.
Because that term exceeded the maximum statutory sentences of 360 months for
manufacturing child pornography and 240 months for distribution and receipt of
child pornography, the Sentencing Guidelines provided that the statutory sentences
run consecutively. United States Sentencing Guidelines § 5G1.1(d) (Nov. 2008).
At the sentencing hearing, Huskey asked the district court to order that his
sentences run concurrently for a term of 30 years of imprisonment. The district
court, after “hav[ing] looked at [Huskey’s case] hard and long,” sentenced Huskey
to 840 months of imprisonment, which the court “acknowledge[d] and [didn’t]
have any qualms” that was “in effect . . . a life sentence.” The court stated that it
had “considered Section 3553 in this matter and all of its parts” and found “a need
to incapacitate this defendant and to prevent any further criminal activity on his
part” and “that the public need[ed] to be protected from Huskey.” The court
explained that Huskey’s sentence was based on “the serious” and “violent nature of
[Huskey’s] offenses,” the length of the sexual abuse, the age of the victim, the
distribution of the pornography, and Huskey’s “collection of digital images.”
3
We review the reasonableness of a criminal sentence for an abuse of
discretion. Gall v. United States, 128 S. Ct. 586, 594, 596–97 (2007); United
States v. Gonzalez, 550 F.3d 1319, 1323 (11th Cir. 2008). Because the standard is
deferential, “when the district court imposes a sentence within the advisory
Guidelines range, we ordinarily will expect that choice to be a reasonable one.”
United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). After [United States
v.] Booker, [543 U.S. 220, 125 S. Ct. 738 (2005)], our ordinary expectation still
has to be measured against the record, and the 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.
Huskey argues that his sentence is unreasonable because the district court
applied perfunctorily the Sentencing Guidelines and failed to consider the
sentencing factors, but we disagree. Although Booker rendered the Guidelines
advisory, it did not give district courts the unfettered discretion to ignore them. On
the contrary, district courts remain obliged to “consult” the Guidelines and apply
them if the circumstances warrant. See United States v. Sarris, 575 F.3d 1191,
1220 (11th Cir. 2009). Huskey argues for concurrent sentences on the ground that
“manufacturing child pornography necessarily presumes the eventual distribution
of that pornography,” but he acknowledges that “[i]t is not legally required that the
4
sentences merge.”
Huskey’s sentence is reasonable. The district court considered the section
3553(a) factors and found that a sentence of 840 months was necessary to deter
Huskey from future similar conduct, protect the public, reflect the seriousness of
his offenses, promote respect for the law, and provide a just punishment. Huskey
perpetrated sadistic acts on his young and impressionable daughter, forced her to
recount those events, and traded images of the abuse to amass more obscene
materials to satisfy his sexual appetite. The district court reasonably found that a
term that was “in effect . . . a life sentence” was necessary to punish Huskey and
prevent him from inflicting similar abuses on other children. The district court did
not abuse its discretion by imposing consecutive sentences.
Huskey’s sentence is AFFIRMED.
5