[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 19, 2009
No. 08-17120 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-00039-CR-T-30TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL PERRY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 19, 2009)
Before EDMONDSON, MARCUS and FAY, Circuit Judges.
PER CURIAM:
Michael Perry appeals his 110-month sentence imposed for possession of
child pornography, 18 U.S.C. § 2252(a)(4)(B). No reversible error has been
shown; we affirm.
On appeal, Perry argues that his sentence procedurally and substantively is
unreasonable: the district court failed to state its reasons for the given sentence and
failed to consider adequately Perry’s poor health. We review a final sentence for
procedural and substantive reasonableness. United States v. Gonzalez, 550 F.3d
1319, 1323 (11th Cir. 2008), cert. denied, 129 S.Ct. 2848 (2009). A sentence may
be procedurally unreasonable if the district court fails to explain adequately the
chosen sentence. Id. We evaluate the substantive reasonableness of a sentence
under a deferential abuse-of-discretion standard. Gall v. United States, 128 S.Ct.
586, 597 (2007). The party challenging the reasonableness of the sentence bears
the burden of establishing that the sentence is unreasonable in the light of both the
record and the 18 U.S.C. § 3553(a) factors. United States v. Talley, 431 F.3d 784,
788 (11th Cir. 2005).
Under section 3553(a), a district court should consider the nature and
circumstances of the offense, the history and characteristics of the defendant, the
need for the sentence to provide adequate deterrence, respect for the law, and
protection of the public, policy statements of the Sentencing Commission,
2
provision for the medical and educational needs of the defendant, and the need to
avoid unwarranted sentencing disparities. See 18 U.S.C. § 3553(a)(1)-(7). “The
weight to be accorded any given [section] 3553(a) factor is a matter committed to
the sound discretion of the district court, and we will not substitute our judgment in
weighing the relevant factors.” United States v. Amedeo, 487 F.3d 823, 832 (11th
Cir. 2007) (quotation and citation omitted).
We conclude that Perry’s sentence -- which fell within the applicable
guidelines range of 97 to 120 months -- was reasonable. See Talley, 431 F.3d at
788 (noting that “ordinarily we would expect a sentence within the Guidelines
range to be reasonable”). No procedural error occurred. The district court
considered the advisory guidelines range, the presentence investigation report
outlining Perry’s offense conduct, and Perry’s arguments in support of a downward
variance (including that he was in poor health from the AIDS virus); and the court
concluded that a sentence within the guidelines range was sufficient but not greater
than necessary to comply with the statutory purposes of sentencing. The district
court’s statement of reasons was sufficient. See United States v. Rita, 127 S.Ct.
2456, 2468-69 (2007) (a lengthy explanation is not necessarily required when a
judge decides to follow the guidelines in a particular case, especially where a
sentencing judge has listened to the arguments of the parties, considered the
supporting evidence, and was aware of the special conditions of the defendant).
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We also conclude that Perry’s sentence substantively was reasonable.
Perry’s computer contained 92 videos and 48 still photographs of nude and semi-
nude children engaging in sexual contact with other children and with adults. The
record also included victim impact statements from children in the videos and
photos detailing the pain and suffering they endured from their abusers and from
those who have viewed their images. See United States v. Pugh, 515 F.3d 1179,
1202 (11th Cir. 2008) (noting that we “typically treat[] child sex offenses as
serious crimes, upholding severe sentences).
We cannot say that the 110-month within-range sentence failed to reflect the
purposes of sentencing or that “the district court committed a clear error of
judgment in weighing the [section] 3553(a) factors by arriving at a sentence that
lies outside the range of reasonable sentences dictated by the facts of the case.” See
id. at 1191.1
AFFIRMED.
1
We reject Perry’s argument that his sentence created an unwarranted sentencing
disparity among child pornography possession defendants. Simply because other similarly-
situated defendants convicted of child pornography possession may have received downward
variances does not mean that the court imposed an unreasonable sentence in Perry’s case. See
Gall, 128 S.Ct. at 599 (because the “avoidance of unwarranted [sentencing]
disparities was clearly considered by the Sentencing Commission when setting the
Guidelines ranges,” a district court necessarily gives weight and consideration to
the need to avoid unwarranted disparities when it correctly calculates and carefully
reviews the guidelines range); Talley, 431 F.3d at 788 (“there is a range of
reasonable sentences from which the district court may choose”).
4