Case: 19-13427 Date Filed: 09/15/2020 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-13427 Non-Argument Calendar ________________________
D.C. Docket No. 9:19-cr-80037-WPD-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ERIC KLAUSMEYER,
Defendant - Appellant.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(September 15, 2020)
Before ROSENBAUM, JILL PRYOR and BRANCH, Circuit Judges.
PER CURIAM: Case: 19-13427 Date Filed: 09/15/2020 Page: 2 of 9
Eric Klausmeyer appeals his 96-month sentence, imposed after he pled
guilty to one count of distribution of child pornography in violation of 18 U.S.C.
§ 2252(a)(2) and (b)(1). On appeal, Klausmeyer argues that his below-guideline
sentence is procedurally and substantively unreasonable. Because the district court
adequately explained its decision to impose this sentence and did not abuse its
discretion in weighing the 18 U.S.C. § 3553(a) sentencing factors, we affirm.
I. BACKGROUND
This case arises out of Klausmeyer’s communications through an online
messaging application with an individual who turned out to be an undercover law
enforcement officer. Over the course of their communications, Klausmeyer sent
the undercover officer images and videos depicting children engaged in sexually
explicit conduct. On this basis, officers executed a search warrant on
Klausmeyer’s home and recovered various electronic devices containing a total of
335 images and 11 videos depicting child pornography. Klausmeyer was charged
with, and pled guilty to, one count of distribution of child pornography.
Prior to sentencing, the probation office prepared a presentence investigation
report (“PSR”). The PSR applied a base offense level of 22. Klausmeyer received
a two-level enhancement because the material involved a minor under the age of
12, a two-level enhancement because the offense involved distribution, a four-level
enhancement because the material either portrayed violence or sexual abuse of an
2 Case: 19-13427 Date Filed: 09/15/2020 Page: 3 of 9
infant or toddler, a two-level enhancement because Klausmeyer used a computer,
and a five-level enhancement because the offense involved more than 600 images.1
He received a three-level reduction for acceptance of responsibility. Based on a
total offense level of 34 and a criminal history category of I, Klausmeyer’s
recommended range under the Sentencing Guidelines was 151 to 188 months’
imprisonment.
The PSR discussed Klausmeyer’s personal background. Klausmeyer
explained that his father emotionally abused him as a child. His mother noted that
he struggled after his younger brother and father’s longtime girlfriend died within
the span of a few months. The PSR noted that Klausmeyer had recently been
diagnosed with major depressive disorder, generalized anxiety disorder, and
primary insomnia and was receiving treatment. The PSR also recounted that he
had degrees in business administration and construction management and, prior to
his arrest, he owned and operated a construction business.
Klausmeyer did not object to the PSR, but he requested the mandatory
minimum sentence of 60 months’ imprisonment. In a sentencing memorandum, he
referred the district court to testimony from federal judges on the flaws of child
pornography sentencing enhancements, arguing that the enhancements were based
1 A video clip is considered to have 75 images. U.S.S.G § 2G2.2(b)(7), cmt. n.6(B)(ii). 3 Case: 19-13427 Date Filed: 09/15/2020 Page: 4 of 9
on “legislative politics,” rather than empirical analysis. Doc. 39 at 4.2 He cited
cases where defendants convicted of child pornography-related offenses received
well below-guideline sentences. At sentencing, Klausmeyer’s psychotherapist
testified that he has complex post-traumatic stress disorder and sex addiction. The
therapist did not consider him to be a sexual offender because his conduct did not
involve the exertion of power. Klausmeyer also submitted letters from family and
members of his community attesting to his good character and claimed that given
his education, work history, mental status, low risk of recidivism, and willingness
to pay restitution to victims, a 60-month sentence was appropriate.
The government did not request that the district court impose a specific
sentence, but it argued that more than 60 months’ imprisonment was necessary
given the nature of the offense. Although the government agreed that Klausmeyer
had accepted responsibility and acknowledged that he was willing to pay
restitution, it emphasized that the harm to the victims weighed in favor of a within-
guideline sentence. The government noted that there were approximately 43
victims identified on Klausmeyer’s devices and submitted victim impact
statements from seven victims.
Before imposing a sentence, the district court explained that it had reviewed
the 18 U.S.C. § 3553(a) factors and the Sentencing Guidelines. The court
2 “Doc.” numbers refer to the district court’s docket entries.
4 Case: 19-13427 Date Filed: 09/15/2020 Page: 5 of 9
considered several mitigating factors, including Klausmeyer’s cooperation with
law enforcement, his mental status, his family and community support, and his lack
of criminal history. The court considered defense counsel’s argument that
Klausmeyer presented a low risk of recidivism. It recognized “that other judges
have given downward variances” in child pornography cases and was “mindful” of
imposing a sentence that did not “deviat[e] from . . . the norm.” Doc. 58 at 72.
The district court also acknowledged aggravating factors, including the serious
nature of the crime and the need to promote respect for the law and deter future
criminal conduct.
After weighing the factors, the court imposed a below-guideline sentence of
96 months’ imprisonment with five years of supervised release. This is
Klausmeyer’s appeal.
II. DISCUSSION
On appeal, Klausmeyer challenges the procedural and substantive
reasonableness of his sentence. We review the reasonableness of a sentence under
a deferential abuse of discretion standard.3 Gall v. United States, 552 U.S. 38, 41
3 The government argues that we should review Klausmeyer’s procedural reasonableness arguments only for plain error, as he failed to preserve them at sentencing. United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014) (“[B]ecause [the defendant] did not object to the procedural reasonableness at the time of his sentencing, we review for plain error.”). We need not resolve the question of the standard of review, however, because we would affirm the district court’s sentencing decision even under the more favorable abuse-of-discretion standard Klausmeyer suggests we should apply. 5 Case: 19-13427 Date Filed: 09/15/2020 Page: 6 of 9
(2007).
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Case: 19-13427 Date Filed: 09/15/2020 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-13427 Non-Argument Calendar ________________________
D.C. Docket No. 9:19-cr-80037-WPD-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ERIC KLAUSMEYER,
Defendant - Appellant.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(September 15, 2020)
Before ROSENBAUM, JILL PRYOR and BRANCH, Circuit Judges.
PER CURIAM: Case: 19-13427 Date Filed: 09/15/2020 Page: 2 of 9
Eric Klausmeyer appeals his 96-month sentence, imposed after he pled
guilty to one count of distribution of child pornography in violation of 18 U.S.C.
§ 2252(a)(2) and (b)(1). On appeal, Klausmeyer argues that his below-guideline
sentence is procedurally and substantively unreasonable. Because the district court
adequately explained its decision to impose this sentence and did not abuse its
discretion in weighing the 18 U.S.C. § 3553(a) sentencing factors, we affirm.
I. BACKGROUND
This case arises out of Klausmeyer’s communications through an online
messaging application with an individual who turned out to be an undercover law
enforcement officer. Over the course of their communications, Klausmeyer sent
the undercover officer images and videos depicting children engaged in sexually
explicit conduct. On this basis, officers executed a search warrant on
Klausmeyer’s home and recovered various electronic devices containing a total of
335 images and 11 videos depicting child pornography. Klausmeyer was charged
with, and pled guilty to, one count of distribution of child pornography.
Prior to sentencing, the probation office prepared a presentence investigation
report (“PSR”). The PSR applied a base offense level of 22. Klausmeyer received
a two-level enhancement because the material involved a minor under the age of
12, a two-level enhancement because the offense involved distribution, a four-level
enhancement because the material either portrayed violence or sexual abuse of an
2 Case: 19-13427 Date Filed: 09/15/2020 Page: 3 of 9
infant or toddler, a two-level enhancement because Klausmeyer used a computer,
and a five-level enhancement because the offense involved more than 600 images.1
He received a three-level reduction for acceptance of responsibility. Based on a
total offense level of 34 and a criminal history category of I, Klausmeyer’s
recommended range under the Sentencing Guidelines was 151 to 188 months’
imprisonment.
The PSR discussed Klausmeyer’s personal background. Klausmeyer
explained that his father emotionally abused him as a child. His mother noted that
he struggled after his younger brother and father’s longtime girlfriend died within
the span of a few months. The PSR noted that Klausmeyer had recently been
diagnosed with major depressive disorder, generalized anxiety disorder, and
primary insomnia and was receiving treatment. The PSR also recounted that he
had degrees in business administration and construction management and, prior to
his arrest, he owned and operated a construction business.
Klausmeyer did not object to the PSR, but he requested the mandatory
minimum sentence of 60 months’ imprisonment. In a sentencing memorandum, he
referred the district court to testimony from federal judges on the flaws of child
pornography sentencing enhancements, arguing that the enhancements were based
1 A video clip is considered to have 75 images. U.S.S.G § 2G2.2(b)(7), cmt. n.6(B)(ii). 3 Case: 19-13427 Date Filed: 09/15/2020 Page: 4 of 9
on “legislative politics,” rather than empirical analysis. Doc. 39 at 4.2 He cited
cases where defendants convicted of child pornography-related offenses received
well below-guideline sentences. At sentencing, Klausmeyer’s psychotherapist
testified that he has complex post-traumatic stress disorder and sex addiction. The
therapist did not consider him to be a sexual offender because his conduct did not
involve the exertion of power. Klausmeyer also submitted letters from family and
members of his community attesting to his good character and claimed that given
his education, work history, mental status, low risk of recidivism, and willingness
to pay restitution to victims, a 60-month sentence was appropriate.
The government did not request that the district court impose a specific
sentence, but it argued that more than 60 months’ imprisonment was necessary
given the nature of the offense. Although the government agreed that Klausmeyer
had accepted responsibility and acknowledged that he was willing to pay
restitution, it emphasized that the harm to the victims weighed in favor of a within-
guideline sentence. The government noted that there were approximately 43
victims identified on Klausmeyer’s devices and submitted victim impact
statements from seven victims.
Before imposing a sentence, the district court explained that it had reviewed
the 18 U.S.C. § 3553(a) factors and the Sentencing Guidelines. The court
2 “Doc.” numbers refer to the district court’s docket entries.
4 Case: 19-13427 Date Filed: 09/15/2020 Page: 5 of 9
considered several mitigating factors, including Klausmeyer’s cooperation with
law enforcement, his mental status, his family and community support, and his lack
of criminal history. The court considered defense counsel’s argument that
Klausmeyer presented a low risk of recidivism. It recognized “that other judges
have given downward variances” in child pornography cases and was “mindful” of
imposing a sentence that did not “deviat[e] from . . . the norm.” Doc. 58 at 72.
The district court also acknowledged aggravating factors, including the serious
nature of the crime and the need to promote respect for the law and deter future
criminal conduct.
After weighing the factors, the court imposed a below-guideline sentence of
96 months’ imprisonment with five years of supervised release. This is
Klausmeyer’s appeal.
II. DISCUSSION
On appeal, Klausmeyer challenges the procedural and substantive
reasonableness of his sentence. We review the reasonableness of a sentence under
a deferential abuse of discretion standard.3 Gall v. United States, 552 U.S. 38, 41
3 The government argues that we should review Klausmeyer’s procedural reasonableness arguments only for plain error, as he failed to preserve them at sentencing. United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014) (“[B]ecause [the defendant] did not object to the procedural reasonableness at the time of his sentencing, we review for plain error.”). We need not resolve the question of the standard of review, however, because we would affirm the district court’s sentencing decision even under the more favorable abuse-of-discretion standard Klausmeyer suggests we should apply. 5 Case: 19-13427 Date Filed: 09/15/2020 Page: 6 of 9
(2007). “A district court abuses its discretion when it (1) fails to afford
consideration to relevant factors that were due significant weight, (2) gives
significant weight to an improper or irrelevant factor, or (3) 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) (internal quotation marks omitted). The
party challenging the sentence bears the burden of showing it is unreasonable.
United States v. Tome, 611 F.3d. 1371, 1378 (11th Cir. 2010).
Klausmeyer argues that his sentence is procedurally unreasonable because
the district court did not adequately consider his mental status and two cases where
defendants convicted of child pornography related offenses received well below-
guideline sentences. A district court commits a significant procedural error if it
fails “to adequately explain the chosen sentence—including an explanation for any
deviation from the Guidelines range.” Gall, 552 U.S. at 51. The district court is
generally “not required to state on the record that it has explicitly considered each
of the § 3553(a) factors or to discuss each of the § 3553(a) factors,” United States
v. Sanchez, 586 F.3d 918, 936 (11th Cir. 2009) (internal quotation marks omitted),
but it must give an explanation sufficient to allow for “meaningful appellate
review,” Gall, 552 U.S. at 50.
Here, the district court adequately explained why it imposed a 96-month
sentence. The court considered the factors Klausmeyer raises—it acknowledged
6 Case: 19-13427 Date Filed: 09/15/2020 Page: 7 of 9
Klausmeyer’s “mental situation as expressed by [his psychotherapist]” and noted
that it was mindful “that other judges have given downward variances” in child
pornography cases. Doc. 58 at 72. The court also weighed other mitigating
factors, including Klausmeyer’s cooperation with law enforcement; his lack of
criminal history; his asserted low risk of recidivism, which the court gave little
weight; and his family and community support. The district court explained that it
balanced these mitigating factors against aggravating factors, including the nature
of the offense and the need to promote respect for the law and deter similar
conduct. Because the district court’s explanation was sufficient to allow for
meaningful appellate review, there was no procedural error.
Having determined that the district court’s sentencing decision is
procedurally sound, we next assess the substantive reasonableness of Klausmeyer’s
sentence. When reviewing a sentence for substantive reasonableness, we examine
the totality of the circumstances, including “whether the statutory factors in
§ 3553(a) support the sentence in question.” 4 United States v. Gonzalez, 550 F.3d
4 Under § 3553(a), the district court is required to impose a sentence “sufficient, but not greater than necessary, to comply with the purposes” of the statute. These purposes include 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 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).
7 Case: 19-13427 Date Filed: 09/15/2020 Page: 8 of 9
1319, 1324 (11th Cir. 2008). We will not “second guess the weight (or lack
thereof) that [a 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) (internal quotation
marks omitted). We may vacate a sentence only if we firmly believe 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). “Although we do not automatically presume a sentence within the
guidelines range is reasonable, we ordinarily expect a sentence within the
Guidelines range to be reasonable.” United States v. Hunt, 526 F.3d 739, 746
(11th Cir. 2008) (alteration adopted) (internal quotation marks omitted). A
sentence well below the statutory maximum penalty is another indicator of
reasonableness. See Gonzalez, 550 F.3d at 1324 (holding that the sentence was
reasonable in part because it was well below the statutory maximum).
Klausmeyer argues that the district court ignored his “exceptional
circumstances” when making its sentencing determination, including his education,
work history, and mental status. Appellant’s Br. at 33. Contrary to Klausmeyer’s
assertion, as discussed above, the district court explicitly balanced various
mitigating and aggravating § 3553(a) factors, including his mental status and his
8 Case: 19-13427 Date Filed: 09/15/2020 Page: 9 of 9
standing in the community, before reaching its sentencing decision. And
Klausmeyer’s sentence was well below the guidelines range and the 240-month
statutory maximum, see 18 U.S.C. § 2252(b)(1), which supports a finding of
reasonableness, see Gonzalez, 550 F.3d at 1324.
We cannot conclude from this record that the district court abused its
discretion in imposing a 96-month sentence, as the sentence was within the range
of reasonable sentences in light of Klausmeyer’s personal circumstances and the
serious nature of his offense.
III. CONCLUSION
For these reasons, we affirm Klausmeyer’s sentence.
AFFIRMED.