[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 28, 2006
No. 05-15209 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00182-CR-ORL-18-KRS
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
MAX FREDERICK GRAY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 28, 2006)
Before ANDERSON, BIRCH and CARNES, Circuit Judges.
PER CURIAM:
The government appeals Max Frederick Gray’s 72-month sentence imposed
for distribution of child pornography in violation of 18 U.S.C. §§ 2252A(a)(2)(A)
and (b)(1). We affirm.
During an investigation into a child pornography Web site, an undercover
officer received three emails containing images of child pornography from the
screen name “Tenabo Inc.” After determining that the screen name belonged to
Gray, the officer obtained and executed a search warrant for Gray’s residence.
Gray directed the officer to “the disk with the pictures of the children under 18
years of age performing sexual acts.” A forensic analysis of Gray’s computer
revealed more than 300 images of child pornography, some of which depicted
prepubescent children, and three images of child pornography that Gray had sent to
the undercover officer. Gray admitted that he had been downloading sexually
explicit images of children for about five years and had sent images through the
Internet to an individual in Ohio.
A federal grand jury indicted Gray for one count of distribution of child
pornography in violation of §§ 2252(a)(2)(A) and (b)(1) and one count of
possession of child pornography in violation of §§ 2252(A)(a)(5)(B) and (b)(2).
Gray initially pleaded not guilty to the charges but later requested a change of plea
hearing for which he failed to appear. The district court issued a bench warrant for
his arrest.
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Gray was arrested in Indiana on November 29, 2004. Gray was in a vehicle
at a truck stop, broadcasting on a radio that he had a firearm for sale. Police
arrived at the scene and attempted to negotiate with him. During the negotiations,
Gray held a semi-automatic handgun to his head and told the officers that he had
missed his change of plea hearing. Gray ultimately surrendered and was
handcuffed without incident. He was arrested for disorderly conduct and resisting
law enforcement.
The government filed a motion for Gray to undergo a competency
examination based on the nature of his arrest, and the district court granted the
motion. Gray’s evaluation indicated that he suffered from a depressive disorder
and appeared to meet the criteria for dysthymic disorder, a chronic mood disorder.
He admitted attempting suicide on four separate occasions. The competency
examiner concluded that Gray did not suffer from a severe mental disorder or
defect that would preclude his ability to understand the nature and consequences of
the proceedings against him or to assist his attorney in his own defense.
On April 27, 2005, Gray pleaded guilty to one count of distribution of child
pornography pursuant to a plea agreement. The mandatory minimum term of
imprisonment for the offense is five years and the maximum term is twenty years.
18 U.S.C. § 2254(b)(1). At sentencing, Gray raised no objections to the contents
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of the pre-sentence investigation report (PSI) and explained that he was a 64-year-
old man who had a history of health problems and who was recently discharged
from the hospital because of a heart condition. Gray explained that he had never
molested a child and except for a few matters in his criminal history that were so
old they could not be scored, he has been a law-abiding citizen. Gray stated that he
had cooperated with the authorities, giving them a complete statement and
accepting full responsibility for his actions. “[I]t was a bad decision on my part . . .
but I am the one that made that decision, so . . . it’s up to me now to pay the price
for making that choice.” Gray said that he was so troubled by his criminal conduct
and conviction that he had attempted to commit suicide the day of his arrest in
Indiana. He stated that during the incident he had only pointed a weapon at
himself.
In determining Gray’s sentence, the district court considered that Gray had
set up a screen name to carry out his offense, possessed as many as 300 child
pornography images, distributed some images, and failed to attend his plea hearing.
The court also explained that it would “take into consideration [Gray’s] age, [his]
prior minimal record, [his] medical condition, and . . . [would] form a sentence
which it [felt was] reasonable under the circumstances.” Finding Gray’s base
offense level to be 34 and his criminal history category to be I, the court indicated
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that Gray’s guidelines range was 151 to 188 months imprisonment. The court
sentenced Gray to 72 months imprisonment, to be followed by three years of
supervised release. The government objected to the sentence as being
unreasonable.
The government contends that Gray’s 72-month sentence is unreasonable
because the district court failed to give adequate weight to the guidelines range or
the factors set forth in 18 U.S.C. § 3553(a). We review a district court’s sentence
for reasonableness in light of the § 3553(a) factors. United States v. Booker, 543
U.S. 220, 261, 125 S. Ct. 738, 765–66 (2005); United States v. Talley, 431 F.3d
784, 785–86 (11th Cir. 2005). We must determine whether the sentence imposed
by the district court “fails to achieve the purposes of sentencing as stated in section
3553(a).” Talley, 431 F.3d at 788. We have stated that “there is a range of
reasonable sentences from which the district court may choose.” Id.
In United States v. Williams, 435 F.3d 1350 (11th Cir. 2006), this Court held
that under the circumstances of that case a sentence less than half of the low end of
the guidelines was reasonable. Id. at 1353, 1356. The defendant was a career
offender convicted of selling $350 worth of crack cocaine. Id. at 1351–52. The
district court sentenced him to 90 months imprisonment, well below the applicable
guidelines range of 188 to 235 months. Id. at 1351–53. We noted that the court
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was not required to state on the record that it had considered each § 3553(a) factor
or to discuss each factor. Id. at 1353–54. We explained that “the district court’s
statements over the course of the sentencing hearing show it weighed the factors in
§ 3553 and took into account Williams’ individual history and the nature of the
charge against him when it determined to sentence him to a lower term.” Id. at
1355. We reasoned that this was “not a case where the district court imposed a
non-Guidelines sentence based solely on its disagreement with the Guidelines.” Id.
Rather, “the district court correctly calculated the Guidelines range and gave
specific, valid reasons for sentencing lower than the advisory range.” Id.
Here, the district court gave specific, valid reasons for imposing a sentence
that was lower than the guidelines range. See Williams, 435 F.3d at 1355. The
court’s statements at sentencing reflect that it took into account Gray’s age, his
prior minimal criminal record, and his medical condition. These are all valid
considerations because they relate to the “history and characteristics of the
defendant.” See 18 U.S.C. § 3553(a)(1). The court weighed these factors against
“the nature and circumstances of the offense” and decided to impose a non-
guidelines sentence. See id. There is no indication that the court imposed the
lower sentence solely because it disagreed with the guidelines. See Williams, 435
F.3d at 1355. Rather, the court’s statements show that it believed the 72-month
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sentence to be reasonable. Although Gray’s sentence is less than half the 151
months that defines the bottom of the guidelines range, under the circumstances
and given the district court’s explanation we cannot say that is unreasonable in
light of the § 3553(a) factors.
AFFIRMED.
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