United States v. Max Frederick Gray

[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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