Case: 18-11390 Date Filed: 07/31/2019 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-11390 Non-Argument Calendar ________________________
D.C. Docket No. 6:17-cr-00144-LSC-SGC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRAD RICHARD MCKLEROY,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Northern District of Alabama ________________________
(July 31, 2019)
Before TJOFLAT, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM: Case: 18-11390 Date Filed: 07/31/2019 Page: 2 of 7
Brad Richard McKleroy appeals his total sentence of 121 months’
imprisonment for possession of child pornography, in violation of 18 U.S.C.
§ 2252A(a)(5)(B) and (b)(2), and attempted transfer of obscene material to a
minor, in violation of 18 U.S.C. § 1470. On appeal, he argues that the district
court imposed a procedurally and substantively unreasonable total sentence
because it treated the low-end of his guideline range as a mandatory floor, failed to
consider mitigating factors and afford consideration to the 18 U.S.C. § 3553(a)
factors, and failed to consider that U.S.S.G. § 2G2.2, the guideline underlying his
child pornography offense, is not based on empirical data and does not properly
reflect the statutory purposes of sentencing.
We review the reasonableness of a sentence under a deferential
abuse-of-discretion standard, evaluating both procedural and substantive
reasonableness. Gall v. United States, 552 U.S. 38, 51 (2007). Similarly, when a
district court recognizes its authority to grant a variance, we review for abuse of
discretion its decision not to grant a downward variance. United States v. Cubero,
754 F.3d 888, 897 & n.8 (11th Cir. 2014). However, “if a defendant fails to
clearly articulate a specific objection during sentencing, the objection is waived,”
and we review for plain error. United States v. Zinn, 321 F.3d 1084, 1088 (11th
Cir. 2003) (emphasis in original).
2 Case: 18-11390 Date Filed: 07/31/2019 Page: 3 of 7
Under plain-error review, we may correct an error where (1) an error
occurred; (2) the error was plain; and (3) the error affects substantial rights. United
States v. Olano, 507 U.S. 725, 732 (1993). When these three factors are met, we
may exercise our discretion and correct the error only if it “seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.” Id. (quotation
marks omitted) (alteration in original). For an error to be plain, it must be
“contrary to explicit statutory provisions or to on-point precedent in this Court or
the Supreme Court.” United States v. Hoffman, 710 F.3d 1228, 1232 (11th Cir.
2013) (per curiam) (quotation marks omitted).
A sentence may be procedurally unreasonable if the sentencing court failed
to properly calculate the guideline range, consider the 18 U.S.C. § 3553(a) factors,
or adequately explain the chosen sentence. Gall, 552 U.S. at 51. However, we do
not require a district court to state on the record that it has explicitly considered
each of the § 3553(a) factors and will consider it sufficient where the district court
acknowledges that it considered the defendant’s arguments and the § 3553(a)
factors. United States v. Dorman, 488 F.3d 936, 938 (11th Cir. 2007). In
sentencing a defendant, the district court “should set forth enough to satisfy the
appellate court that [it] has considered the parties’ arguments and has a reasoned
basis for exercising [its] own legal decisionmaking authority.” Rita v. United
States, 551 U.S. 338, 356 (2007).
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After reviewing for procedural reasonableness, we consider the substantive
reasonableness of a sentence. Gall, 552 U.S. at 51. In reviewing a district court’s
sentence for substantive reasonableness, we examine the totality of the
circumstances to determine whether the statutory factors in § 3553(a) support the
sentence in question. United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir.
2008) (per curiam). A sentence may be substantively unreasonable if a district
court unjustifiably relied on any § 3553(a) factor, considered impermissible
factors, or failed altogether to consider pertinent § 3553(a) factors. United States
v. Sarras, 575 F.3d 1191, 1219 (11th Cir. 2009).
The district court’s sentence must be “sufficient, but not greater than
necessary, to comply with the purposes” listed in § 3553(a)(2), including the need
for the sentence to reflect the seriousness of the offense and to promote respect for
the law, the need for adequate deterrence, the need to protect the public, and the
need to provide the defendant with educational or vocational training, medical
care, or other correctional treatment. 18 U.S.C. § 3553(a)(2). The district court
must also consider the nature and circumstances of the offense, the history and
characteristics of the defendant, the kinds of sentences available, the guideline
range, any 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).
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The party who challenges the sentence bears the burden of showing that the
sentence is unreasonable in light of the record and the § 3553(a) factors. United
States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). The weight given to any
specific § 3553(a) factor is committed to the sound discretion of the district court.
United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007). As such, the district
court need not specifically address every mitigating factor raised by the defendant
in order for the sentence to be substantively reasonable. United States v. Snipes,
611 F.3d 855, 873 (11th Cir. 2010). We will not remand for resentencing unless
left with a definite and firm conviction that the district court committed a clear
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Case: 18-11390 Date Filed: 07/31/2019 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-11390 Non-Argument Calendar ________________________
D.C. Docket No. 6:17-cr-00144-LSC-SGC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRAD RICHARD MCKLEROY,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Northern District of Alabama ________________________
(July 31, 2019)
Before TJOFLAT, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM: Case: 18-11390 Date Filed: 07/31/2019 Page: 2 of 7
Brad Richard McKleroy appeals his total sentence of 121 months’
imprisonment for possession of child pornography, in violation of 18 U.S.C.
§ 2252A(a)(5)(B) and (b)(2), and attempted transfer of obscene material to a
minor, in violation of 18 U.S.C. § 1470. On appeal, he argues that the district
court imposed a procedurally and substantively unreasonable total sentence
because it treated the low-end of his guideline range as a mandatory floor, failed to
consider mitigating factors and afford consideration to the 18 U.S.C. § 3553(a)
factors, and failed to consider that U.S.S.G. § 2G2.2, the guideline underlying his
child pornography offense, is not based on empirical data and does not properly
reflect the statutory purposes of sentencing.
We review the reasonableness of a sentence under a deferential
abuse-of-discretion standard, evaluating both procedural and substantive
reasonableness. Gall v. United States, 552 U.S. 38, 51 (2007). Similarly, when a
district court recognizes its authority to grant a variance, we review for abuse of
discretion its decision not to grant a downward variance. United States v. Cubero,
754 F.3d 888, 897 & n.8 (11th Cir. 2014). However, “if a defendant fails to
clearly articulate a specific objection during sentencing, the objection is waived,”
and we review for plain error. United States v. Zinn, 321 F.3d 1084, 1088 (11th
Cir. 2003) (emphasis in original).
2 Case: 18-11390 Date Filed: 07/31/2019 Page: 3 of 7
Under plain-error review, we may correct an error where (1) an error
occurred; (2) the error was plain; and (3) the error affects substantial rights. United
States v. Olano, 507 U.S. 725, 732 (1993). When these three factors are met, we
may exercise our discretion and correct the error only if it “seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.” Id. (quotation
marks omitted) (alteration in original). For an error to be plain, it must be
“contrary to explicit statutory provisions or to on-point precedent in this Court or
the Supreme Court.” United States v. Hoffman, 710 F.3d 1228, 1232 (11th Cir.
2013) (per curiam) (quotation marks omitted).
A sentence may be procedurally unreasonable if the sentencing court failed
to properly calculate the guideline range, consider the 18 U.S.C. § 3553(a) factors,
or adequately explain the chosen sentence. Gall, 552 U.S. at 51. However, we do
not require a district court to state on the record that it has explicitly considered
each of the § 3553(a) factors and will consider it sufficient where the district court
acknowledges that it considered the defendant’s arguments and the § 3553(a)
factors. United States v. Dorman, 488 F.3d 936, 938 (11th Cir. 2007). In
sentencing a defendant, the district court “should set forth enough to satisfy the
appellate court that [it] has considered the parties’ arguments and has a reasoned
basis for exercising [its] own legal decisionmaking authority.” Rita v. United
States, 551 U.S. 338, 356 (2007).
3 Case: 18-11390 Date Filed: 07/31/2019 Page: 4 of 7
After reviewing for procedural reasonableness, we consider the substantive
reasonableness of a sentence. Gall, 552 U.S. at 51. In reviewing a district court’s
sentence for substantive reasonableness, we examine the totality of the
circumstances to determine whether the statutory factors in § 3553(a) support the
sentence in question. United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir.
2008) (per curiam). A sentence may be substantively unreasonable if a district
court unjustifiably relied on any § 3553(a) factor, considered impermissible
factors, or failed altogether to consider pertinent § 3553(a) factors. United States
v. Sarras, 575 F.3d 1191, 1219 (11th Cir. 2009).
The district court’s sentence must be “sufficient, but not greater than
necessary, to comply with the purposes” listed in § 3553(a)(2), including the need
for the sentence to reflect the seriousness of the offense and to promote respect for
the law, the need for adequate deterrence, the need to protect the public, and the
need to provide the defendant with educational or vocational training, medical
care, or other correctional treatment. 18 U.S.C. § 3553(a)(2). The district court
must also consider the nature and circumstances of the offense, the history and
characteristics of the defendant, the kinds of sentences available, the guideline
range, any 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).
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The party who challenges the sentence bears the burden of showing that the
sentence is unreasonable in light of the record and the § 3553(a) factors. United
States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). The weight given to any
specific § 3553(a) factor is committed to the sound discretion of the district court.
United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007). As such, the district
court need not specifically address every mitigating factor raised by the defendant
in order for the sentence to be substantively reasonable. United States v. Snipes,
611 F.3d 855, 873 (11th Cir. 2010). We will not remand for resentencing unless
left with a definite and firm conviction that the district court committed a clear
error of judgment in weighing the § 3553(a) factors by imposing a sentence outside
of the range of reasonable sentences based upon the facts of the case. United
States v. Croteau, 819 F.3d 1293, 1309 (11th Cir. 2016). That we may reasonably
conclude a different sentence is appropriate is insufficient for reversal. Gall, 552
U.S. at 51.
For child pornography offenses, the Sentencing Guidelines provide that
some of the specific offense characteristics include: (1) increasing by 2 levels
where “the material involved a prepubescent minor or a minor who had not
attained the age of 12 years,” (2) increasing by 2 levels where the offense involved
some level of distribution not otherwise described in that subsection, (3) increasing
by 4 levels where “the offense involved material that portrays sadistic or
5 Case: 18-11390 Date Filed: 07/31/2019 Page: 6 of 7
masochistic conduct or other depictions of violence,” (4) increasing by 2 levels
where “the offense involved the use of a computer or an interactive computer
service for the possession, transmission, receipt, or distribution of the material, or
for accessing with intent to view the material,” and (5) increasing by 5 levels
where the offense involved 600 or more images. U.S.S.G. § 2G2.2(b)(2),
(b)(3)(F), (b)(4), (b)(6), (b)(7)(D).
We have previously indicated that the 2013 Sentencing Commission report,
centering around § 2G2.2, “does not invalidate § 2G2.2” and that a district court’s
use of the guideline does not render a defendant’s sentence substantively
unreasonable. Cubero, 754 F.3d at 899-900. In Cubero, we affirmed a 151-month
sentence as substantively reasonable where the defendant possessed hundreds of
images and more than 12 videos of child pornography. Id. at 898-901; see also
United States v. Carpenter, 803 F.3d 1224, 1235 (11th Cir. 2015).
As an initial matter, because McKleroy did not object to the district court’s
imposition of the sentence based on the guideline range below, his arguments
related to that issue must be reviewed for plain error. The district court stated that
it based the total sentence on the § 3553(a) factors. Contrary to McKleroy’s
argument, the district court did not treat the low-end of his guideline range as a
mandatory floor because the court considered his arguments regarding a downward
variance and determined that neither a variance nor a low-end guideline sentence
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was appropriate in this case. Accordingly, the district court did not plainly err by
imposing a guideline sentence.
Although McKleroy argues that the Sentencing Commission’s stance on
§ 2G2.2 is evidence of its unreasonableness, we have held that § 2G2.2 is valid and
a district court’s use of the guideline does not render a defendant’s sentence
substantively unreasonable. Cubero, 754 F.3d at 899-900. Further, the district
court utilized its discretion in emphasizing its concern with the nature of the
offense and McKleroy’s characteristics, including his “unusual” desire to engage in
a relationship with a minor based on his communications with an officer he
thought was a 14-year-old girl and his very active solicitation of child
pornography. The court also stated that it considered “nature and circumstances
of your offense and your history and characteristics and your conduct;” the court is
not required to list each of the § 3553 factors or specifically address every
mitigating factor raised by the defendant. Snipes, 611 F.3d at 873. The total
sentence imposed was commensurate with the facts of this case, and thus,
McKleroy’s sentence is procedurally and substantively reasonable. Accordingly,
we affirm.
AFFIRMED.