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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-12467 ________________________
D.C. Docket No. 6:18-cr-00273-CEM-GJK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRYAN MATTHEW COONEY,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(February 16, 2021)
Before ROSENBAUM, LUCK, and JULIE CARNES, Circuit Judges.
PER CURIAM:
Bryan Cooney appeals his 228-month sentence, representing a substantial
upward variance from his applicable Sentencing Guidelines range, which the district USCA11 Case: 19-12467 Date Filed: 02/16/2021 Page: 2 of 19
court imposed after he pled guilty to knowingly possessing images and videos of
child pornography involving a prepubescent minor. After careful review and oral
argument, we affirm.
I. BACKGROUND
A. Factual Background1
An undercover Federal Bureau of Investigation (“FBI”) agent engaged in
conversation online via the internet messaging application Kik with a user known as
“yolo17_cool,” who stated that he was “active” with his 12-year-old daughter, which
the agent interpreted as meaning sexually active. The user told the agent that he had
a video of his daughter urinating and nude photos, including one of the child
urinating and another of the child tied to a bed. The user also asked members of the
online group of which the agent was a member if they had access to a known video
of a young girl being sexually abused and tortured by an older female.
The FBI issued a subpoena to Kik and discovered that the user known as
“yolo17_cool” was associated with an Internet Protocol address assigned to
Cooney’s home. The FBI obtained a search warrant for Cooney’s home and seized
his cell phone. In an interview with agents, Cooney admitted that he had a Kik
account under the “yolo17_cool” username, used it to engage in role play and to
1 Our description of the facts comes from the unobjected-to facts in the presentence investigation report.
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share images of a minor, had a “panty” fetish, had downloaded child pornography
on his cell phone and transferred it to a Dropbox account, and had posted to Kik
nonpornographic images of a friend’s 12-year-old daughter. On Kik, Cooney
represented that the friend’s daughter was Cooney’s daughter, whom he was
sexually molesting.
A forensic review of Cooney’s cell phone and Dropbox account discovered
multiple folders filled with images and videos depicting the rape and sexual abuse
of prepubescent children. The officers also discovered a folder containing
nonpornographic images of the daughter of one of Cooney’s “friends” on the online
platform Facebook. Cooney used these images to trade for child pornography from
other Kik users, telling the users the images depicted his daughter. All told, Cooney
possessed at least 200 videos and 30 images of child pornography.
B. Procedural Background
Cooney pled guilty to one count of knowingly possessing images and videos
of child pornography involving a prepubescent minor, in violation of 18 U.S.C.
§ 2252A(a)(5)(B), (b)(2). In anticipation of sentencing, the probation office
prepared a presentence investigation report (“PSR”). The PSR calculated Cooney’s
base offense level as 18. See U.S.S.G. § 2G2.2(a)(1). The PSR included several
enhancements, including a two-level enhancement under U.S.S.G. § 2G2.2(b)(2)
because the offense involved a prepubescent minor or a child under 12 years old; a
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four-level increase under U.S.S.G. § 2G2.2(b)(4) because the material Cooney
possessed depicted sadistic or masochistic conduct, other depictions of violence, or
the sexual abuse or exploitation of an infant or toddler; a two-level increase under
U.S.S.G. § 2G2.2(b)(6) because the offense involved the use of a computer; and a
five-level increase under U.S.S.G. § 2G2.2(b)(7)(D) because the offense involved
600 or more images of child pornography (each video was considered to have 75
images). The PSR applied a three-level reduction under U.S.S.G. § 3E1.1 because
Cooney accepted responsibility for his offense, thus bringing his total offense level
to 28. Cooney’s criminal history category was I; this, plus a total offense level of
28, yielded a guidelines range of 78 to 97 months’ imprisonment. The statutory
maximum term of imprisonment was 240 months. See 18 U.S.C. § 2252A(a)(5)(B),
(b)(2).
The PSR described Cooney’s background, including that he had been
employed as an emergency medical technician for several years. The PSR also
discussed Cooney’s reports that he was sexually molested as a minor. In particular,
the PSR recounted that when Cooney was 10 years old, his mother’s step-sister, who
was 15 years old at the time, began living with him and his family. According to
Cooney, the step-sister molested him on an ongoing basis for two years. The PSR
also noted that Cooney had recently been in a relationship with R.B., who was
pregnant with his child. The two were no longer in a relationship.
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The probation officer included several documents along with the PSR. One
was a report from Dr. Jefferey Danziger. Danziger conducted a psychiatric and
psychosexual evaluation of Cooney, and based in part on Danziger’s conclusion that
there was “no history of a contact sexual offense, and no history of [Cooney’s] ever
attempting to groom or . . . meet with [a] child for inappropriate purposes,” Danziger
determined that Cooney presented no heightened threat of harm or danger to children
or the community. Danziger opined that Cooney’s child-related fetishes likely
resulted from the sexual abuse he experienced as a child. As Danziger noted,
Cooney had been abused by older females, including “his roughly 17-year-old
cousin” and “a woman in her 30s, reportedly his mother’s half-sister.” Doc. 60 at
22.2 Cooney’s mother’s half-sister “had him do sexual things, including oral sex,
with her approximately six-year-old daughter,” and Cooney “may have also, at the
behest of the older woman, engaged in some sexual activity with his sister.” Id.
Danziger diagnosed Cooney with Pedophilic Disorder and no other psychiatric
disorders.
Other submissions included victim impact statements in which victims of
known child pornography series that Cooney possessed detailed their sexual abuse
and the continuing trauma of knowing that the pornographic materials portraying
them are still circulating.
2 Citations in the form “Doc. #” refer to entries on the district court’s docket.
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The probation office also included several letters regarding two individuals
with whom Cooney previously had a relationship, A.I. and her minor daughter I.G.
A.I. wrote a letter to the court explaining that she believed Cooney, with whom she
had worked and whom she saw as a “little brother,” had molested I.G. while
babysitting I.G. when she was four years old. Doc. 60-3 at 3. The last time Cooney
babysat I.G., he took her across the county to a Disney Hotel, changed her into a
holiday dress, and had photographs of her taken as a gift for her and A.I.
At the time, A.I. did not suspect that Cooney had molested I.G., but when I.G.
was preschool aged, she developed sensory and behavioral issues consistent with
sexual abuse and exploitation. A.I. confirmed that the images Cooney had shared
on Kik of the girl he claimed to be his daughter came from her Facebook page. She
reported that a former girlfriend of Cooney’s told her that Cooney had a pair of little
girl’s underwear that he said belonged to I.G. And she explained her belief, based
on conversations with this former girlfriend, as well as R.B., Cooney’s most recent
former girlfriend, and their shared colleagues, that Cooney had an ongoing obsession
with and “may have actually been recently stalking” I.G. Id. at 6-7. A.I. asked for
the maximum sentence allowable to help protect I.G. from Cooney.
A letter from I.G.’s therapist tended to corroborate A.I.’s suspicions. It
explained that I.G. had experienced panic disorder, trichotillomania (pathological
hair pulling), and anxiety, in addition to “multiple sensory sensitivities” including
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“an unusual need to keep her vagina dry” and “discomfort with wearing underwear.”
Doc. 60-1 at 1. The therapist noted “concern[] that [I.G.] was abused in the past,”
although she represented that I.G. had “never reported sexual abuse.” Id. Also
included was a letter from A.I.’s “sexual trauma therapist,” who “fe[lt] very strongly
that [I.G.’s] symptoms,” as A.I. described them, “suggest she was exposed to some
form of inappropriate sexual contact.” Doc. 60-2 at 1.
The PSR recommended that the district court sentence Cooney to 97 months’
imprisonment followed by 10 years of supervised release. In support, the PSR cited
the seriousness of Cooney’s offense, that Cooney had used pictures of someone
else’s minor daughter to obtain child pornography from others, that Cooney
“regularly babysat [I.G.] when the child was four years old,” and that “[t]he child’s
mother asserts the child has the behavioral symptoms of a child who has been
sexually abused.” Doc. 60 at 37.
Cooney objected to the PSR’s enhancements for use of a computer and
involvement of a prepubescent child. He requested a downward variance, citing his
childhood abuse and Danziger’s opinion that he did not pose a threat to children or
the community. In support of his request for a variance, he included letters from his
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mother, as well as several friends and former coworkers, all attesting to his good
character. 3
At the sentencing hearing, the district court overruled Cooney’s objections
and adopted the PSR’s statements as its factual findings. The court calculated
Cooney’s guidelines range as 78 to 97 months’ imprisonment just as the PSR had.
The court noted that “[t]here have been matters submitted by the defense for the
[c]ourt to consider in terms of mitigation.” Doc. 88 at 7. Cooney apologized for his
conduct.
The government called FBI special agent Rodney Hyre, who was assigned to
a task force that investigated Cooney. Hyre and other agents executed the search
warrant on Cooney’s home. Hyre also interviewed R.B. (Cooney’s most recent
former girlfriend). R.B. stated in a recorded interview that Cooney told her he had
ejaculated onto I.G. and had touched I.G.’s vagina while she was sleeping. Cooney
represented to R.B. that he was actually I.G.’s stepfather and “was very involved in
this little girl’s life.” Id. at 17. R.B. further stated that Cooney would have R.B.
“pretend to be 12-year-old [I.G.] while they had sex. He would have her wear little
girl panties, which we found at the time of the search warrant in Mr. Cooney’s
house.” Id. at 16. R.B. reported that Cooney told her the underwear belonged to
3 Cooney also included letters of support from R.B. and R.B.’s mother, but both had withdrawn their support by the time of the sentencing hearing. 8 USCA11 Case: 19-12467 Date Filed: 02/16/2021 Page: 9 of 19
I.G. R.B. stated that Cooney showed her a video of child pornography and told R.B.
that the child in the video was I.G. R.B. refused Cooney’s requests that she watch
child pornography on other occasions. Hyre confirmed that the child in the video
was not I.G., but that it was a video Cooney circulated on Kik.
Hyre further explained that Cooney “shared . . . a total of seven
[nonpornographic] . . . images of both [I.G.], [I.G.]’s little sister, and some . . . school
age friends of” I.G. “in order to prove his bona fides that he was in fact [I.G.]’s father
which he stated.” Id. at 17. Hyre explained that of the pornographic content found
in Cooney’s possession, much was “very heavily themed on . . . daddy-daughter
incest type things.” Id. at 20. One file folder was named with I.G.’s first name and
contained nonpornographic images of I.G. as well as four videos of child
pornography. The title of one of the videos indicated that the child portrayed was
four years old, the same age I.G. was when Cooney last babysat her.
Hyre also reported speaking with another former girlfriend of Cooney’s. This
woman told Hyre that she had discovered “an endless number of child pornography
videos” on their shared computer. Id. at 23. She further reported finding “that
[Cooney] had done incest searches on her computer and . . . that while they were
living together she found a pair of little girl panties in the house.” Id. She confronted
Cooney, who “became very angry and abusive,” grabbing her and leaving bruises
on her arms. Id. at 23-24.
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A.I. gave an unsworn victim impact statement. She stated that Cooney
“created and got caught up in a complex belief” that he was related to and sexually
active with I.G. Id. at 27. She told the court that the pictures Cooney took from her
Facebook account and uploaded via Kik “are now circulating the websites known
for child predators.” Id. Cooney, she said, “was using them as bait to get his hands
on more child pornography.” Id. She urged the court to consider Cooney’s “unborn
daughter that [R.B.] is car[ry]ing who has no idea how much danger she is in the
second she is born because her father is the worst type of sexual deviant that’s fixated
on incest with a child.” Id. at 28. A.I. again asked that the district court sentence
Cooney to the maximum sentence under the law.
Cooney declined to make any sentencing argument after A.I. spoke. The
government requested an upward variance of 15 years’ imprisonment but also
expressed support for A.I.’s request, calling it “reasonable” and “supported by the
evidence.” Doc. 88 at 34. The government emphasized the fact, described in the
PSR, that Cooney had solicited a video that is one of the “most sadistic videos of
child pornography that we know about.” Id. at 37. The government emphasized
“the real danger posed by [Cooney] to children in [the] community, including his
unborn daughter.” Id. at 34-35. The government argued, “based on the totality of
the circumstances in this case[,] that [Cooney] did” sexually assault I.G. Id. at 35.
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And the government emphasized that Danziger diagnosed him with pedophilia
“based on prior sexual contact with a six-year-old child.” Id. at 38.
The district court once again confirmed its consideration of the PSR and its
calculation and of the advisory guidelines, stating that it had “reviewed the
presentence report and the advisory guidelines.” Id. at 39. It also acknowledged
that it had “consider[ed] . . . all of the factors identified in” 18 U.S.C. § 3553(a).”
Id. at 45. The court explained that Cooney’s was not “like just any other” child-
pornography possession case, finding “particularly significant” the contents of A.I.’s
letter. Doc. 88 at 39. The court further explained that Cooney was “a danger,” but
that Cooney was “entitled to some sort of mitigation” for “the fact that [he] did enter
a plea.” Id. at 40. The court sentenced Cooney to 228 months’ imprisonment, one
year shy of the statutory maximum, and told him that “there should be one year you
get credit for accepting responsibility for what you did, but I cannot bring myself to
give you any more credit than that. . . . [T]here’s a pregnant woman whose child
you should never have any access to until she’s an adult.” Id. at 40-41. The court
imposed a 30-year term of supervised release to follow the term of imprisonment.
The court noted that it had imposed “a substantial upward variance” and reiterated
that “the basis for that is the [c]ourt believes that based on the evidence presented to
the [c]ourt [Cooney] is a serious danger to the public now and in the future, also the
severity of the relevant conduct,” and, given that “Congress contemplated that there
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was a possession of child porn case that was so awful that it would merit” the
statutory maximum of 20 years, “[t]his is that case.” Id. at 45. The court opined that
the sentence it imposed was “sufficient, but not greater than necessary, to comply
with the statutory purposes of sentencing.” Id.
This is Cooney’s appeal.
II. STANDARD OF REVIEW
We review the reasonableness of a sentence under a deferential abuse-of-
discretion standard, considering the totality of the circumstances and the sentencing
factors set forth in 18 U.S.C. § 3553(a). 4 Gall v. United States, 552 U.S. 38, 41
(2007). Under § 3553(a), the district court is required to impose a sentence
“sufficient, but not greater than necessary, to comply with the purposes” of
§ 3553(a)(2)—the need to reflect the seriousness of the offense, promote respect for
the law, provide just punishment, deter criminal conduct, protect the public from the
defendant’s future criminal conduct, and effectively provide the defendant with
educational or vocational training, medical care, or other correctional treatment. 18
U.S.C. § 3553(a)(2). The court must also consider the nature and circumstances of
the offense, the history and characteristics of the defendant, the kinds of sentences
4 Cooney did not specifically object to the sentence the district court imposed, but his challenge is preserved because he requested a below-guideline sentence during the sentencing hearing and explained the basis for that request. See Holguin-Hernandez v. United States, 140 S. Ct. 762, 766-67 (2020) (holding that a defendant’s argument for a specific sentence preserved his substantive reasonableness claim on appeal).
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available, the applicable guidelines 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).
The party challenging a sentence bears the burden of proving the sentence is
unreasonable. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). A
district court imposes a substantively unreasonable sentence when it fails to afford
consideration to relevant factors that were due significant weight, gives significant
weight to an improper or irrelevant factor, or commits a clear error of judgment in
considering the proper factors. United States v. Irey, 612 F.3d 1160, 1189 (11th Cir.
2010) (en banc). The district court is free to “attach great weight to one factor over
others.” United States v. Rosales-Bruno, 789 F.3d 1249, 1254 (11th Cir. 2015)
(internal quotation marks omitted). But a sentencing court’s “single-minded[]”
focus on one factor to the detriment of other relevant sentencing factors “is a
symptom of an unreasonable sentence.” United States v. Crisp, 454 F.3d 1285, 1292
(11th Cir. 2006) (internal quotation marks omitted).
At the sentencing stage, a district court is permitted to consider a wide range
of information. See United States v. Behr, 93 F.3d 764, 765-66 (11th Cir. 1996).
The court is permitted to take into account any information relevant to the
defendant’s background, character, and conduct when determining whether an
upward variance is appropriate. Tome, 611 F.3d at 1379. The court may not,
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however, rely on inaccurate or unreliable information. United States v. Ghertler,
605 F.3d 1256, 1269 (11th Cir. 2010). Ultimately, we will vacate a sentence 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.”
Irey, 612 F.3d at 1190 (internal quotation marks omitted).
When a sentencing court varies above the advisory guideline range, it must
provide a justification that is “‘sufficiently compelling to support the degree of the
variance.’” Id. at 1186 (quoting Gall, 552 U.S. at 50). We do not assume a sentence
outside the guideline range is unreasonable and must give due deference to the
district court’s decision that the extent of the variance is justified by the § 3553(a)
factors. Id. at 1187.
III. DISCUSSION
Cooney argues that his sentence is substantively unreasonable.5 Specifically,
he argues that the district court (1) committed a clear error in judgment in balancing
5 Although Cooney argues in his initial brief that his sentence is “procedurally defective,” Appellant’s Br. at 21, he clarifies in his reply brief that he is not asserting that his sentence is procedurally unreasonable, only that it is substantively unreasonable, see Reply Br. at 1-2. Nevertheless, we note that his specific objection that the district court did not start with the advisory guidelines but rather with the statutory maximum is an argument that sounds in procedural unreasonableness. Since Cooney did not object on this basis in the district court (nor on the other grounds that he raises in his substantive-reasonableness argument), these arguments would be subject to plain-error review in the procedural-reasonableness framework. A defendant may not avoid application of plain-error review by recharacterizing what is clearly a procedural- reasonableness argument under our precedent as a substantive-reasonableness argument. 14 USCA11 Case: 19-12467 Date Filed: 02/16/2021 Page: 15 of 19
the § 3553(a) sentencing factors by using the statutory maximum sentence rather
than the guidelines as a starting point; (2) gave improper weight to A.I.’s suspicions
about the sexual abuse of I.G.; and (3) failed to consider significant mitigating
factors. We address these arguments in turn.
First, the record belies Cooney’s argument that the district court used the
statutory maximum and not Cooney’s guidelines range as a starting point for
determining the appropriate sentence. The court’s first statement in announcing
Cooney’s sentence was that it had considered the guidelines, and the court repeated
the correct guidelines range as calculated in the PSR. Only then, after establishing
that baseline, did the court determine that Cooney’s was not the ordinary case and
that it warranted an upward variance from the guidelines range to the statutory
maximum because of particular aggravating circumstances. The district court
nevertheless deemed it appropriate to give Cooney a reduction from what it thought
would otherwise have been the appropriate sentence, for acceptance of
responsibility, akin to a reduction Cooney received in his guidelines calculation. We
discern no error in this respect.
We also reject Cooney’s second argument, that his sentence is unreasonable
because the district court unjustifiably relied on A.I.’s statements. Cooney argues
Nonetheless, for purposes of this review and since it makes no difference to the ultimate outcome here, we consider within the substantive-unreasonableness rubric all the arguments Cooney raises.
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that A.I.’s statements were unrelated to the instant offense and unreliable because
there was no evidence that he actually sexually abused I.G. We disagree. A.I.’s
letter and statements were related to the offense because they explained Cooney’s
relationship with I.G. and provided background for his use of photos of I.G. to obtain
child pornography. Moreover, information about A.I.’s belief that Cooney had
abused I.G. was relevant to the district court’s consideration of the § 3553(a) factors,
specifically, the need to protect others from Cooney’s future crimes. See 18 U.S.C.
§ 3553(a)(2)(C). Not only that, but the evidence concerning A.I. suggested
Cooney’s continuing obsession with I.G. and supported the district court’s
conclusion that Cooney represented a danger to the public (in particular to I.G. and
to his unborn child).
The information A.I. supplied also had sufficient indicia of reliability. A
district court can consider “any information, (including hearsay), regardless of its
admissibility at trial, in determining whether factors exist that would enhance a
defendant’s sentence, provided that the evidence has sufficient indicia of reliability,
the court makes explicit findings of fact as to credibility, and the defendant has an
opportunity to rebut the evidence.” Ghertler, 605 F.3d at 1269 (internal quotation
marks omitted). Each of these conditions is satisfied here. A.I.’s statements were
supported by letters from therapists, information in the PSR, and Hyre’s testimony
(including his discussion of Cooney’s former girlfriends’ statements corroborating
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Cooney’s obsession with I.G. and his sexual interaction with her). The district court
found A.I.’s letter and statement to be credible, finding the information in them to
be “particularly significant.” Doc. 88 at 39. 6 And Cooney had an opportunity to
rebut A.I.’s statements but simply declined to do so, other than to rely on Danziger’s
report, which did not account for A.I.’s allegations and evidence or for any evidence
that Cooney had ever had sexual contact with a minor.
Nor has Cooney convinced us that the district court focused myopically on
A.I.’s statements to the exclusion of other relevant evidence. True, the district court
found “particularly significant” A.I.’s letter to the court, Doc. 88 at 39, but this
statement by no means suggests that the court arrived at its sentence solely because
of the letter. Rather, the record shows that the court carefully considered multiple
sources of information to conclude that Cooney was a danger, including Hyre’s
testimony about the type of child pornography Cooney had solicited and the
substance of R.B.’s interview. See 18 U.S.C. § 3553(a)(2)(C) (requiring the district
court to consider the need for the sentence “to protect the public from further crimes
of the defendant”). It was within the court’s discretion to “attach great weight” to
the need to protect the public from Cooney’s future crimes. Rosales-Bruno, 789
F.3d at 1254 (internal quotation marks omitted).7
6 Cooney does not argue that this was insufficient as a credibility determination. 7 Cooney argues, for the first time in his reply brief, that even if A.I.’s statements were reliable, his sentence is still unreasonable because it is higher than the top of what his guidelines 17 USCA11 Case: 19-12467 Date Filed: 02/16/2021 Page: 18 of 19
Third, Cooney argues that his sentence is unreasonable because the district
court failed to give sufficient weight to substantial mitigating factors, including that
he had not previously offended, was the victim of sexual assault and molestation as
a child, had stable employment and was seen in the community as a man of good
character, and was, according to Danziger, not at a heightened risk of danger to the
community or children. We conclude, however, that the district court did not abuse
its discretion in considering the evidence regarding Cooney’s abuse of I.G. and other
aggravating evidence to outweigh this evidence in mitigation.
The district court acknowledged that it had reviewed the PSR, which
contained Cooney’s low criminal-history score, employment history, and report of
his molestation as a child. Although Danziger opined that Cooney was not a
heightened risk of danger, Danziger did not account for A.I.’s allegations regarding
Cooney’s abuse of I.G. and the evidence supporting her allegations. For this reason,
the district court was entitled to give more weight to A.I.’s statements than to
Danziger’s opinion. The district court did not expressly mention the letters of
support Cooney submitted that attested to his good character, but there is no
requirement that the court explicitly state that it has reviewed every piece of
evidence. See Rita v. United States, 551 U.S. 338, 356 (2007) (explaining that a
range would have been had enhancements for child exploitation been included. Issues raised for the first time in a reply brief are deemed waived. United States v. Curtis, 380 F.3d 1308, 1310 (11th Cir. 2004). We therefore do not address Cooney’s argument.
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district court is only obligated to “set forth enough to satisfy the appellate court that
[it] has considered the parties’ arguments”). We therefore discern no abuse of
discretion in the district court’s consideration of the mitigating versus aggravating
evidence in this case.
Cooney essentially asks us to reweigh the § 3553(a) factors, but our standard
of review precludes us from doing so. See United States v. Johnson, 803 F.3d 610,
620 (11th Cir. 2015) (“[T]he weight to be given each of the[] factors was within the
district court’s discretion, and we will not reweigh the factors.”). The district court
imposed a significant variance, but it did so only after carefully considering the
information in the PSR and its attachments, the guidelines calculations, A.I.’s
statements, Hyre’s testimony, and the § 3553(a) factors. Cooney’s arguments do not
leave us “with the definite and firm conviction that the district court committed a
clear error of judgment.” Irey, 612 F.3d at 1190 (internal quotation marks omitted).
We therefore affirm.
AFFIRMED.