Case: 12-11287 Date Filed: 11/15/2012 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-11287
Non-Argument Calendar
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D.C. Docket No. 6:11-cr-00136-ACC-GJK-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
MARK BOYKIN,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(November 15, 2012)
Before TJOFLAT, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
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Mark Boykin appeals his 78-month sentence, imposed at the low end of the
applicable guideline range, after pleading guilty to one count of possession of child
pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B), (b)(2). On appeal, Boykin
argues that his sentence was substantively unreasonable because the district court
failed to vary from the guideline range calculated under U.S.S.G. § 2G2.2, which he
claims is unreasonably high. After thorough review, we affirm.
We review the sentence a district court imposes for “reasonableness,” which
“merely asks whether the trial court abused its discretion.” United States v. Pugh,
515 F.3d 1179, 1189 (11th Cir. 2008) (quoting Rita v. United States, 551 U.S. 338,
351 (2007)).
In reviewing sentences for reasonableness, we typically perform two steps. Id.
at 1190. First, we “‘ensure that the district court committed no significant procedural
error, such as failing to calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing to adequately explain
the chosen sentence -- including an explanation for any deviation from the Guidelines
range.’” Id. (quoting Gall v. United States, 552 U.S. 38, 51 (2007)).1
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The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment for the
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If we conclude that the district court did not procedurally err, we must consider
the “‘substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard,’” based on the “‘totality of the circumstances.’” Id.
(quoting Gall, 552 U.S. at 51). This review is “deferential,” requiring us to determine
“whether the sentence imposed by the district court fails to achieve the purposes of
sentencing as stated in section 3553(a).” United States v. Talley, 431 F.3d 784, 788
(11th Cir. 2005). “[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, alteration and emphasis
omitted), cert. denied, 131 S.Ct. 2962 (2011). We will “vacate the sentence if, but
only if, we are 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.” See United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc)
(quotation omitted), cert. denied, 131 S. Ct. 1813 (2011).
offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with educational or vocational training
or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the
pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted
sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).
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The party who challenges the sentence bears the burden to show it is
unreasonable in light of the record and the § 3553(a) factors. United States v. Tome,
611 F.3d 1371, 1378 (11th Cir.), cert. denied, 131 S.Ct. 674 (2010). Although we do
not automatically presume a sentence falling within the guideline range to be
reasonable, we ordinarily expect such a sentence to be reasonable. United States v.
Hunt, 526 F.3d 739, 746 (11th Cir. 2008).
Boykin has not carried his burden of demonstrating that his sentence was
substantively unreasonable.2 First, the district court did conduct an individualized
assessment. The PSI, which the district court adopted, showed that Boykin had a very
minimal criminal history, consisting of two misdemeanors committed when he was
only 20 years old. At the same time, he possessed hundreds of photographs and
videos of child pornography, including many depicting child victims who were under
12 years old and containing sadistic or masochistic conduct. The court explicitly
considered each of these facts -- the fact that minor children were abused, the fact that
the videos contained sadistic and masochistic conduct, the high number of images,
and Boykin’s prior criminal history -- when making its sentencing determination. In
2
Boykin raises no challenge to the procedural reasonableness of his sentence, and
accordingly, he has waived any claim in this respect. See United States v. Jernigan, 341 F.3d
1273, 1283 n.8 (11th Cir. 2003) (holding that issues not raised in an initial brief on appeal are
deemed abandoned).
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light of the record and the § 3553(a) factors, it found the “very, very serious nature
of the offense” to require a sentence within the guideline range. The court further
found, in acknowledgment of Boykin’s minor prior criminal history, a sentence at the
lowest end of the guideline range appropriate. Thus, because the court considered the
totality of the circumstances in crafting the sentence, Boykin’s sentence was not
substantively unreasonable on the basis that the court failed to conduct an
individualized assessment. See Gall, 552 U.S. at 51.
Boykin argues, however, that the inherent unreasonableness of the child
pornography guidelines defeats the concept of an individualized assessment. But we
have previously upheld the validity of U.S.S.G. § 2G2.2, foreclosing Boykin’s
argument attacking the reasonableness of the child pornography offender guidelines
in and of themselves. In Pugh, for example, we said that the guidelines for child
pornography offenses are not substantively deficient, unlike the substantive
deficiencies the Supreme Court found embedded in the crack cocaine guidelines in
Kimbrough v. United States, 552 U.S. 85, 109 (2007). See Pugh, 515 F.3d at 1201
n.15. Although Boykin argues that our adherence in Pugh to the child pornography
guidelines is mere dicta, our caselaw does not support his claim. See Irey, 612 F.3d
at 1212 n.32 (reaffirming that “the guideline sentences for child pornography crimes
. . . do not exhibit the deficiencies the Supreme Court identified [in the crack cocaine
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guidelines] in Kimbrough” (quotation omitted)); United States v. Wayerski, 624 F.3d
1342, 1354 (11th Cir. 2010) (summarily rejecting the argument that the child
pornography offender guidelines are irrational and not empirically based). In any
event, Kimbrough would merely permit, but not require, deviation from the guidelines
range. See 552 U.S. at 91. Thus, Boykin’s argument that the child pornography
guidelines are intrinsically flawed is unavailing.
The district court considered the guidelines range, along with the other §
3553(a) factors it was required to consult, and ultimately imposed a sentence at the
low end of that range. Moreover, the court did not substantively err when it consulted
the child pornography guidelines, because the guidelines themselves are not
substantively unreasonable. Accordingly, we affirm the sentence as reasonable.
AFFIRMED.
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