Case: 11-15534 Date Filed: 08/01/2012 Page: 1 of 12
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-15534
Non-Argument Calendar
________________________
D.C. Docket No. 0:11-cr-60178-JEM-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
DUANE GILLETTE,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 1, 2012)
Before HULL, MARTIN and FAY, Circuit Judges.
PER CURIAM:
Duane Gillette appeals the procedural and substantive reasonableness of his
Case: 11-15534 Date Filed: 08/01/2012 Page: 2 of 12
240-month sentence for distribution of child pornography. On appeal, Gillette
argues that his sentence is procedurally unreasonable because the district court did
not consider his arguments or the 18 U.S.C. § 3553(a) sentencing factors. He
argues that his sentence is substantively unreasonable because it was longer than
necessary given the characteristics of his offense. For the reasons set forth below,
we affirm Gillette’s sentence.
I.
In November 2010, Gillette sent and received, via email, child pornography.
Federal Bureau of Investigation agents searched his home and storage unit in June
2011 and found more than 400 videos and more than 2,000 images depicting child
pornography. The images included young children, infants, and bondage
involving minors.
Gillette pleaded guilty to distributing child pornography, in violation of 18
U.S.C. § 2252(a)(2). His presentence investigation report (“PSI”) assigned him a
base offense level of 22, under U.S.S.G. § 2G2.2; a 2-level increase, under
§ 2G2.2(b)(2), because the pornography involved a minor under the age of 12; a
5-level increase, under § 2G2.2(b)(3)(B), because the offense involved distribution
in exchange for a thing of value; a 4-level increase, under § 2G2.2(b)(4), because
the pornography portrayed sadistic or masochistic conduct; a 2-level increase,
2
Case: 11-15534 Date Filed: 08/01/2012 Page: 3 of 12
under § 2G2.2(b)(6), because the offense involve a computer; and a 5-level
increase, under § 2G2.2(b)(7)(D), because the offense involved at least 600
images. Gillette received a 3-level reduction, under U.S.S.G. § 3E1.1, for
acceptance of responsibility, which gave him a total offense level of 37. Gillette
received 1 criminal history point for a state conviction in 2003 for lewd or
lascivious exhibition to an individual under the age of 16. He was sentenced to
five years’ probation in that case, and he was required to register as a sex offender
in Florida. In 1993, he had been arrested for indecent assault of a child under the
age of 16. The adjudication was withheld in that case, and Gillette received two
years’ probation. He received no criminal history points for the 1993 offense.
Gillette’s criminal history category was I. Based on a total offense level of 37 and
a criminal history category of I, Gillette’s guideline range was 210 to 262 months’
imprisonment. Because the statutory maximum sentence was 240 months’
imprisonment, under U.S.S.G. § 5G1.1, his guideline range became 210 to 240
months’ imprisonment.
Prior to the sentencing hearing, Gillette objected to the PSI, arguing that,
under United States v. Rodriguez, 64 F.3d 638 (11th Cir. 1995), he should receive
a downward departure for acceptance of responsibility. He asserted that, without
such a reduction, his guideline range would be above the statutory maximum
3
Case: 11-15534 Date Filed: 08/01/2012 Page: 4 of 12
sentence and he would not benefit from his acceptance of responsibility. Gillette
also moved for a downward variance on grounds that, among other reasons, he had
exhibited exceptional acceptance of responsibility, he had good prospects for
rehabilitation, and his crime was an anomaly in his life. In a letter to the court,
Gillette accepted responsibility and expressed remorse for his actions, explained
that abuse he experienced as a child influenced his actions, and stated that he was
working to get well and change his life. Finally, Gillette submitted two
psychological evaluations and a number of letters that his friends had written in
support of him.
At the sentencing hearing, Gillette argued that a 3-level reduction for
acceptance of responsibility was insufficient because, with that reduction, the
guideline range would nonetheless include the 240-month statutory maximum
sentence. A downward variance or departure for acceptance of responsibility was
thus appropriate because, without one, Gillette would not benefit from the
acceptance-of-responsibility reduction due to the statutory maximum sentence.
The court stated that Gillette’s guideline range had already been lowered due to
the statutory maximum sentence being below the high end of the range. Although
Gillette’s argument was interesting, there was no compelling reason to impose a
downward variance or departure, and the court declined to do so.
4
Case: 11-15534 Date Filed: 08/01/2012 Page: 5 of 12
As to Gillette’s offense, the court stated that this case was one of the more
egregious “noncontact” child pornography cases it had seen. Additionally, child
pornography crimes were not victimless crimes. Gillette acknowledged that his
crime was not a victimless crime, but he also argued that he had not had contact
with any of the victims. The court responded that the guideline calculations
already took into account the fact that Gillette had not had contact with the
victims. Gillette agreed, but argued that he was unlikely to commit future
offenses. In November 2010, before the government found Gillette’s child
pornography, he had put his computer in storage, and he had not possessed child
pornography since that time. Gillette had also sought treatment for his behavior.
Through those actions, Gillette had exhibited an exceptional acceptance of
responsibility and therefore deserved a downward departure.
The court stated that it had read the letters and psychological reports that
Gillette had submitted. As to Gillette’s sentence, the court stated that, although
the advisory guideline ranges for child pornography offenses sometimes seemed
“draconian,” this case was not Gillette’s first offense involving children.
Additionally, Gillette had possessed a large number of images. The court noted
that it had imposed below-guideline sentences in cases where, unlike Gillette, the
defendants had possessed only a small number of images. Moreover, although the
5
Case: 11-15534 Date Filed: 08/01/2012 Page: 6 of 12
guideline range might be harsh, Congress ultimately had the “right to declare the
will of the people” and to promulgate guideline ranges to reflect the appropriate
sentence in a particular case. The court believed that the guideline ranges
promulgated by the Sentencing Commission were usually fair, and the court did
not believe that Gillette’s case was one in which a sentence outside the guideline
range was appropriate, particularly given Gillette’s previous behavior.
Additionally, the court found it unfortunate that Florida had not imposed
more meaningful punishments in Gillette’s prior cases because, had the state done
so, perhaps Gillette would have stopped his illegal conduct earlier and never
committed the instant offense. The court had considered the parties’ statements;
the PSI, which contained the advisory guideline range; and the statutory
sentencing factors. A sentence at the high end of the guideline range was
necessary to reflect Gillette’s repeated misconduct involving children. Thus, the
court sentenced Gillette to 240 months’ imprisonment.
II.
We review the reasonableness of a sentence under a deferential abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 591,
169 L.Ed.2d 445 (2007). Under the abuse of discretion standard, a sentence will
be affirmed unless we find that the district court has made a clear error of
6
Case: 11-15534 Date Filed: 08/01/2012 Page: 7 of 12
judgment. United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc),
cert. denied, 131 S.Ct. 1813 (2011). “[W]e will not second guess the weight (or
lack thereof) that the [district court] accorded to a given factor . . . as long as the
sentence ultimately imposed is reasonable in light of all the circumstances
presented.” United States v. Snipes, 611 F.3d 855, 872 (11th Cir. 2010) (quotation
omitted). The party challenging a sentence bears the burden of establishing that it
is unreasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
In reviewing the reasonableness of a sentence, we conduct a two-step
review, first ensuring that the sentence was procedurally reasonable, meaning that
the district court properly calculated the guideline range, treated the guideline
range as advisory, considered the § 3553(a) factors, did not select a sentence based
on clearly erroneous facts, and “adequately explain[ed] the chosen sentence.”
Gall, 552 U.S. at 51, 128 S.Ct. at 597. At the time of sentencing, the court must
state its reasons for imposing a particular sentence. 18 U.S.C. § 3553(c).
However, the court is not 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). Rather, it
is within the district court’s “own professional judgment” to determine the detail
necessary in its statement of reasons. Rita v. United States, 551 U.S. 338, 356,
7
Case: 11-15534 Date Filed: 08/01/2012 Page: 8 of 12
127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007). It may be clear from the
circumstances of the case that the district court rests its “decision upon the
[Sentencing] Commission’s own reasoning that the Guidelines sentence is a proper
sentence (in terms of § 3553(a) and other congressional mandates) in the typical
case, and that the [court] has found that the case before [it] is typical.” Id. at 357,
127 S.Ct. at 2468. Thus, the court’s acknowledgment that it has considered the
§ 3553(a) factors together with the parties’ arguments is sufficient. Talley, 431
F.3d at 786.
In Rodriguez, which was decided when the Sentencing Guidelines were still
mandatory, we held that a district court has the discretion to depart downward
when § 5G1.1(a)—which sets the guideline range at the statutory maximum where
the bottom of the applicable guideline range exceeds the statutory maximum—
renders § 3E1.1 ineffectual in reducing the defendant’s actual sentence. 64 F.3d at
643.
Once we determine that a sentence is procedurally sound, we must examine
whether the sentence was substantively reasonable in light of the record and the
§ 3553(a) factors. Talley, 431 F.3d at 788. The district court is required to
“impose a sentence sufficient, but not greater than necessary, to comply with the
purposes set forth in” § 3553(a)(2). 18 U.S.C. § 3553(a). These purposes include
8
Case: 11-15534 Date Filed: 08/01/2012 Page: 9 of 12
the need to reflect the seriousness of the offense, promote respect for the law,
provide just punishment for the offense, deter criminal conduct, and protect the
public from the defendant’s future criminal conduct. Id. § 3553(a)(2). The court
must also consider the nature and circumstances of the offense, the defendant’s
history and characteristics, the kinds of sentences available, the applicable
guideline range, the pertinent policy statements of the Sentencing Commission, the
need to avoid unwarranted sentencing disparities, and the need to provide
restitution to victims. Id. § 3553(a)(1), (3)-(7). We ordinarily expect a sentence
within the guideline range to be reasonable. Talley, 431 F.3d at 788. Child
pornography crimes are serious offenses, particularly in light of the psychological
harm that the child victims face even as adults. United States v. Pugh, 515 F.3d
1179, 1195-98 (11th Cir. 2008).
Gillette’s sentence is both procedurally and substantively reasonable. As to
procedural reasonableness, the court properly calculated the guideline range,
treated that range as advisory, stated that it considered the § 3553(a) factors,
explained that guideline ranges as determined by the Sentencing Commission were
generally fair, and determined that a sentence within Gillette’s guideline range was
fair given the circumstances of this case. Contrary to Gillette’s arguments on
appeal, the court did consider Gillette’s arguments and the § 3553(a) factors. The
9
Case: 11-15534 Date Filed: 08/01/2012 Page: 10 of 12
court first considered Gillette’s argument regarding an additional reduction for
acceptance of responsibility. The court noted that it was an interesting argument,
but that there was no compelling reason to further reduce Gillette’s guideline
range. Moreover, contrary to Gillette’s contention, Rodriguez is inapplicable here.
Unlike the district court in Rodriguez, the district court in this case did not treat
the Sentencing Guidelines as mandatory, and the bottom of Gillette’s guideline
range did not exceed his statutory maximum sentence. See 64 F.3d at 643.
Gillette argues on appeal that the court improperly denied his request for an
additional reduction simply because the court was unhappy that Gillette received a
break due to the statutory maximum sentence. Gillette misreads the record. In
stating that the statutory maximum sentence provided Gillette a break, the court
was merely noting that Gillette’s guideline range, after a reduction for acceptance
of responsibility, would have been 210 to 262 months. Due to the statutory
maximum sentence, however, the high end of Gillette’s guideline range was
reduced from 262 to 240 months. Thus, the court was correct that the statutory
maximum sentence had actually benefitted Gillette in terms of the guideline
calculations, and the court’s statement was not improper. Gillette also misreads
the record as to the court’s statements regarding his state court crimes. The court
did not state that it was imposing a 240-month sentence because Florida had been
10
Case: 11-15534 Date Filed: 08/01/2012 Page: 11 of 12
too lenient in punishing Gillette, as Gillette asserts on appeal. Rather, the court
stated that those lenient punishments were unfortunate because more meaningful
punishments might have deterred Gillette from committing the instant offense.
Moreover, it is clear from the record that the court considered Gillette’s
sentencing arguments and the § 3553(a) factors. For example, as to the nature of
the offense, the court noted that Gillette’s conduct was amongst the most
egregious noncontact conduct the court had seen in child pornography cases. The
court also expressly stated that it had considered the parties’ arguments; the PSI,
which contained the advisory guideline range; and the statutory factors. As to the
guideline range and Gillette’s personal history and characteristics, the court
explained that the Sentencing Guidelines expressed the will of the people as to
what was an appropriate sentence in a specific case and that, generally, a
defendant’s guideline range was fair. The court acknowledged that, while the
guideline ranges for child pornography cases could be extreme, the range
applicable in Gillette’s case was fair given the number of images he possessed and
his past conduct involving minors. Because the court stated that it had considered
the § 3553(a) factors and the parties’ arguments and found that the guideline range
was fair, no additional detail was necessary in the court’s explanation of the
sentence. See Rita, 551 U.S. at 356-57, 127 S.Ct. at 2468; Talley, 431 F.3d at 786.
11
Case: 11-15534 Date Filed: 08/01/2012 Page: 12 of 12
Gillette’s sentence is also substantively reasonable in light of the record and
the § 3553(a) factors. The 240-month sentence was within the applicable
guideline range, and we ordinarily expect such a sentence to be reasonable. See
Talley, 431 F.3d at 788. The sentence, moreover, met the goals encompassed
within § 3553(a). Gillette possessed more than 400 videos and more than 2,000
images of child pornography, a serious crime. See Pugh, 515 F.3d at 1195-98. In
addition to possessing such a large collection of child pornography, Gillette shared
his collection with others, and the collection included young and infant children
and images depicting bondage with minors. Due to these specific offense
characteristics, Gillette’s 240-month sentence was reasonable and will not produce
unwarranted sentencing disparities. Additionally, the instant offense was not
Gillette’s first crime in which minors were put at risk. Considering Gillette’s
repeated disregard for laws protecting children, a sentence within the guideline
range was necessary to promote respect for the law, provide just punishment, deter
Gillette from further criminal activity, and protect the public. Based on the above,
Gillette’s ultimate sentence was reasonable, and we will not re-weigh the
§ 3553(a) factors. See Snipes, 611 F.3d at 872.
For the foregoing reasons, we affirm Gillette’s sentence.
AFFIRMED.
12