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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-10251
Non-Argument Calendar
________________________
D.C. Docket No. 3:11-cr-00087-MMH-MCR-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
JAMES D. SPENCE, JR.,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(November 21, 2012)
Before DUBINA, Chief Judge, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
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Appellant James D. Spence, Jr. appeals his statutory maximum sentence of
240 months, imposed after he pled guilty to four counts of interstate transmissions
of threats to injure, in violation of 18 U.S.C. § 875(c). Spence engaged in conduct
that occurred between October 13, 2010, and October 22, 2010, when he made
over 1,000 telephone calls to hospitals around the country and told the women
who answered the phones that he was engaging in, or would engage in, sexual
conduct with minor girls. The district court, after finding that the Guidelines did
not adequately take into account the nature of Spence’s conduct, departed upward
pursuant to U.S.S.G. § 5K2.0. The court also determined that Spence’s criminal
history category substantially under-represented the likelihood of his committing
further crimes and departed upward pursuant to § 4A1.3. Spence’s post-departure
guideline range was thus 51 to 63 months.1 The court then imposed 60 months on
each count and ordered the sentences to be served consecutively, after considering
the factors in 18 U.S.C. § 3553(a).
On appeal, Spence argues this his total sentence is procedurally
unreasonable because the court misapplied the Guidelines when it (1) ordered the
sentences to run consecutively, and (2) based the consecutive sentences on
1
However, the statutory maximum term of imprisonment is 60 months. 18 U.S.C.
§ 875(c). The capped guideline range, therefore, is 51-60 months. U.S.S.G. § 5G1.1(c)(1).
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unsubstantiated assertions. He argues that the sentence is substantively
unreasonable because (1) the variance resulting from running the sentences
consecutively is not justified by compelling reasons; and (2) the court erred in
weighing the § 3553(a) factors. We consider his arguments in turn below.
I. Procedural Unreasonableness
A. Consecutive Sentences
First, Spence argues that his sentence was procedurally unreasonable
because the district court misapplied U.S.S.G. § 5G1.2 by misinterpreting the term
“total punishment.” He contends that the Guidelines permitted the court to impose
consecutive sentences only to the extent necessary to achieve the “total
punishment” from within the guideline range. Thus, the court was authorized to
impose consecutive sentences only to the extent necessary to achieve a total
punishment of 63 months, the top of his applicable guideline range.
We review objections not raised before the district court for plain error only.
United States v. Swatzie, 228 F.3d 1278, 1281 (11th Cir. 2000). To establish plain
error, a defendant must show that there is (1) error, (2) that is plain, and (3) that
affects substantial rights. If those elements are met, we may then exercise our
discretion to notice a forfeited error, “but only if (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” Id. (internal
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quotation marks omitted). An error that affects substantial rights almost always
means an error that affects the outcome of the district court proceedings. United
States v. Beckles, 565 F.3d 832, 844 (11th Cir. 2009). To meet the defendant’s
burden of proving that the error affected his substantial rights, the defendant must
establish a probability sufficient to undermine confidence in the outcome. Id.
If multiple terms of imprisonment are imposed on a defendant at the same
time, the terms may run concurrently or consecutively. 18 U.S.C. § 3584(a).
“Multiple terms of imprisonment imposed at the same time run concurrently unless
the court orders or the statute mandates that the terms are to run consecutively.”
Id. When determining whether to impose concurrent or consecutive sentences, the
court must consider the factors set forth in 18 U.S.C. § 3553(a). 18 U.S.C.
§ 3584(b). The § 3553(a) factors include the need to reflect the seriousness of the
offense, provide for just punishment, deter criminal conduct, protect the public
from the defendant’s future crimes, the nature and circumstances of the offense,
the history and characteristics of the defendant, and the applicable guideline range.
18 U.S.C. § 3553(a)(1)-(7).
Here, the record shows that the district court imposed consecutive sentences
pursuant to 18 U.S.C. §§ 3584 and 3553(a). Because the district court imposed
consecutive sentences pursuant to its statutory authority, and not based on
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§ 5G1.2, we conclude that the district court did not commit error, plain or
otherwise.
B. Unsubstantiated Assertions
Next, Spence argues that the district court committed procedural error
because the decision to run his sentences consecutively was based on “clearly
erroneous facts.” He argues that the court accepted the government’s
representations that “hundreds” of victims had been “terrorized,” without any
evidence presented to support such a finding. Spence argues that the court’s
factual findings must be based on reliable and specific evidence, but the court
merely speculated that the recipients of his calls felt “utter horror,” as the
government did not present any witness testimony.
We review the district court’s factual findings for clear error, and its
application and interpretation of the Guidelines de novo. United States v. Kinard,
472 F.3d 1294, 1297 n.3 (11th Cir. 2006).
A sentence may be procedurally unreasonable if the district court failed to
accurately calculate the guideline range, treated the Guidelines as mandatory,
failed to consider the § 3553(a) factors, selected a sentence based on clearly
erroneous facts, or failed to adequately explain the reasons for the sentence. Gall
v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597, 169 L. Ed. 2d 445 (2007)
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(emphasis added). The district court is entitled to make factual findings based on,
among other things, undisputed statements within the presentence investigation
report (“PSI”), or evidence presented during the sentencing hearing. United States
v. Smith, 480 F.3d 1277, 1281 (11th Cir. 2007). If a defendant does not dispute the
facts in the PSI, those facts are deemed admitted. United States v. Shelton, 400
F.3d 1325, 1330 (11th Cir. 2005).
According to the undisputed facts in the PSI, Spence made over 1,000
telephone calls to 29 listed victims. Shelton, 400 F.3d at 1330. Because the PSI,
without dispute, indicated that at least 1,000 calls were made, and the court
referenced only the number of calls during its § 3553(a) analysis to run the
sentences consecutively, it did not rely on speculative facts. Smith, 480 F.3d at
1281.
Moreover, sufficient evidence was presented in the PSI to allow the court to
infer that the victims of Spence’s calls were “terrorized.” The PSI described the
calls in graphic detail. The calls described sexual conduct that Spence stated he
had performed, or was going to perform, with young girls. The court even listened
to one of the recorded calls and found that the words “vile, depraved, horrific,
[and] repugnant” were inadequate to describe their nature. The court noted that the
victims – the women who answered the phones – would feel “utter horror and
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helplessness” at not being able to help the children that Spence was claiming to
molest. No further evidence was required. Cf. United States v. Caro, 309 F.3d
1348, 1351-52 (11th Cir. 2002) (holding that expert testimony was not required to
find that child pornography was sadistic in nature, when sadism was self-evident
in the photographs).
Accordingly, we conclude that the district court did not clearly err in its
findings of fact, and the 240-month total sentence was not procedurally
unreasonable. See Gall, 552 U.S. at 51, 128 S. Ct. at 597.
II. Substantive Unreasonableness
A. Degree of Variance
Next, Spence argues that his sentence was substantively unreasonable
because the variance, achieved by running the four sentences consecutively, was
extreme and not justified by sufficiently compelling reasons. He argues that, after
the departures, his guideline range was 51 to 63 months. Thus, the 240-month total
sentence is 4.7 times higher (370%) than the low end of that guideline range.
We review the reasonableness of a sentence under a “deferential abuse-of-
discretion standard.” Gall, 552 U.S. at 41, 128 S. Ct at 591. Extraordinary
justification or rigid mathematical formulas are not required for a sentence outside
the guideline range, but the district court should explain why the variance is
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appropriate in a particular case and “the justification for the variance must be
sufficiently compelling to support the degree of the variance.” United States v.
Irey, 612 F.3d 1160, 1186-87 (11th Cir. 2010) (en banc) (internal quotation marks
omitted), cert. denied, 131 S. Ct. 1813 (2011).
While the degree of the variance here was large, we are persuaded that the
facts of this case support such a large variance. A 63-month sentence would be
wholly inadequate to effect the purposes of sentencing and the § 3553(a) factors.
The district court’s reasons were sufficiently compelling to warrant a 240-month
total sentence. Irey, 612 F.3d at 1186-87. The court noted that “vile, depraved,
horrific, and repugnant” were inadequate to describe the nature of the calls.
Spence’s history and characteristics show that he has committed the same type of
criminal behavior for 40 years and is almost certain to recidivate. Previous
sentences did nothing to deter Spence from engaging in this heinous conduct.
Accordingly, we conclude that the district court did not abuse its discretion in
running the sentences consecutively to impose a total 240-month sentence, the
statutory maximum.
B. Weighing the § 3553(a) Factors
Finally, Spence argues that his total sentence is substantively unreasonable
because the court erred in weighing the § 3553(a) factors. He argues that, because
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the court erroneously found that hundreds of victims were terrorized, the court
necessarily weighed the § 3553(a) factors unreasonably against his personal
characteristics (his paraphilia2), the need for the sentence imposed to provide him
with needed medical care, and the sentencing range established for the applicable
category of offense he committed (51 to 63 months).
On appeal, the party challenging the sentence has the burden of establishing
that the sentence is unreasonable in light of the record and the § 3553(a) factors.
United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). A district court abuses
its discretion when it balances the § 3553(a) factors unreasonably or places
unreasonable weight on a single factor. Irey, 612 F.3d at 1189. We reverse only if
“left with the definite and firm conviction that the district court committed a clear
error of judgment in weighing the § 3553(a) factors by arriving at a sentence that
lies outside the range of reasonable sentences dictated by the facts of the case.”
Id. at 1190 (quoting United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008)).
A district court’s unjustified reliance upon any one § 3553(a) factor may be a
symptom of an unreasonable sentence. United States v. Pugh, 515 F.3d 1179,
2
Paraphilia is defined as “a type of mental disorder characterized by a preference for or
obsession with unusual sexual practices, as pedophilia, sadomasochism, or exhibitionism.”
Paraphilia Definition, DICTIONARY.COM, http://dictionary.reference.com/browse/paraphilia (last
visited Oct. 22, 2012).
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1191 (11th Cir. 2008).
The PSI indicates that Spence has committed the same or similar offenses
for 40 years. 18 U.S.C. § 3553(a)(1) (characteristics of the defendant). His
criminal history shows that he is nearly certain to recidivate. 18 U.S.C.
§ 3553(a)(1) (history and characteristics of the defendant). A lengthy sentence is
required to reflect the serious nature of Spence’s 1,000-plus phone calls, as well
as to promote respect for the law, and provide just punishment. 18 U.S.C.
§ 3553(a)(2)(A) (reflect seriousness of offense, promote respect for law, provide
just punishment). The nature of the calls was described as “vile, repulsive, [and]
disgusting.” 18 U.S.C. § 3553(a)(1) (nature and circumstances of offense).
Previous sentences did nothing to deter Spence from engaging in the same type of
criminal behavior. 18 U.S.C. § 3553(a)(2)(B) (afford adequate deterrence). The
only way to protect the public from further criminal conduct by Spence is
incarceration because a telephone is the only thing required for him to place more
threatening calls. 18 U.S.C. § 3553(a)(2)(C) (protect the public from defendant).
The record does not indicate that the district court abused its discretion in
balancing the § 3553(a) factors or placing unreasonable weight on a single factor.
See Irey, 612 F.3d at 1189; Pugh, 515 F.3d at 1191. Although Spence argues that
the court exclusively focused on his criminal history, the court clearly stated that it
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considered heavily the factors of deterrence, protection of the public, and just
punishment.
For the aforementioned reasons, we affirm Spence’s sentence.
AFFIRMED.
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