United States v. John David Latimer

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 1, 2020
• Docket: 20-11330
• Status: Unpublished

Opinion

Case: 20-11330 Date Filed: 10/01/2020 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-11330 Non-Argument Calendar ________________________

D.C. Docket No. 1:18-cr-00278-MHC-JKL-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JOHN DAVID LATIMER,

Defendant - Appellant.

________________________

Appeal from the United States District Court for the Northern District of Georgia ________________________

(October 1, 2020)

Before JORDAN, NEWSOM, and ANDERSON, Circuit Judges.

PER CURIAM: Case: 20-11330 Date Filed: 10/01/2020 Page: 2 of 6

John Latimer appeals his 300-month (25-year) sentence for producing child

pornography, in violation of 18 U.S.C. § 2251(a) and (e), and possession of child

pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2). He argues that

his sentence is substantively unreasonable (1) because the district court didn’t

correctly weigh the 18 U.S.C. § 3553(a) factors and failed to adequately consider

his mitigating evidence, and (2) because his sentence creates an unwarranted

sentencing disparity. After careful review, we affirm.

We review a final sentence for reasonableness, which equates to review for

abuse of discretion. United States v. Pugh, 515 F.3d 1179, 1188–89 (11th Cir.

2008). A district court “imposes a substantively unreasonable sentence only 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. Rosales-Bruno, 789 F.3d 1249, 1256 (11th Cir. 2015) (quoting United

States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc)). We will vacate a

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.” Irey, 612 F.3d at 1190 (quotation marks omitted). The

party challenging the sentence has the burden to show that the sentence is

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unreasonable in light of the record and the § 3553(a) factors. United States v.

Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). A sentence within the guidelines

range is ordinarily reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir.

2008).

Latimer initially contends that the district court erred in weighing 18 U.S.C.

§ 3553(a)’s factors and that it failed to consider his mitigating evidence. Section

3553 requires the district court to impose a sentence that is “sufficient, but not

greater than necessary to comply with” a list of specified purposes. The statute

sets out several factors the court must consider when imposing a sentence,

including “the nature and circumstances of the offense and the history and

characteristics of the defendant,” “the need for the sentence imposed,” “the kinds

of sentences available,” and “the need to avoid unwarranted sentence disparities

among defendants with similar records who have been found guilty of similar

conduct.” 18 U.S.C. § 3553(a). The weight accorded to any particular § 3553(a)

factor is a matter committed to district court’s sound discretion. Rosales-Bruno,

789 F.3d at 1254 (quotation marks omitted). The district court is not required to

address each factor explicitly but need only acknowledge that it has considered the

defendant’s evidence and the § 3553(a) factors. United States v. Gonzalez, 550

F.3d 1319, 1324 (11th Cir. 2008).

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Here, the district court did not abuse its discretion in its consideration of the

§ 3553(a) factors. The district court weighed both the severity of Latimer’s

offense—sexually molesting his own daughter to produce child pornography in

addition to possessing 5,661 images and 134 videos of adult males sexually

abusing young girls—and mitigating factors—Latimer’s background and

acceptance of responsibility. Latimer has not shown a clear abuse of discretion by

the district court simply because it weighed the relevant factors in a way that led to

the imposition of a sentence greater than the one he advocated. Additionally, his

sentence is below both the guidelines range and the statutory maximum, which

indicates reasonableness. United States v. Croteau, 819 F.3d 1293, 1310 (11th Cir.

2016).

Latimer also contends that his 25-year sentence creates a sentencing

disparity—in particular, that his sentence is out-of-line with those imposed on

other similarly situated offenders. Latimer argues (1) that his 25-year sentence is

too close to a 30-year sentence imposed in United States v. Irey, in which the

defendant had sexually abused and tortured at least 50 victims over several years,

612 F.3d 1160, and (2) that his conduct is more in line with the conduct of

defendants in two other district court cases that resulted in 18- to 20-year

sentences.

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When considering a claim of disparity, we first consider “whether the

defendant is similarity situated to the defendants to whom he compares himself.”

United States v. Duperval, 777 F.3d 1324, 1338 (11th Cir. 2015). “A well-founded

claim of disparity . . . assumes that apples are being compared to apples.” United

States v. Docampo, 573 F.3d 1091, 1101 (11th Cir. 2009) (quotation marks

omitted). The defendant has the burden of showing specific facts that establish the

similar situation. United States v. Azmat, 805 F.3d 1018, 1048 (11th Cir. 2015).

Latimer’s sentencing-disparity argument fails. As for the district court cases

he cites, he has not provided any specific facts about the defendants involved in

them. All Latimer has offered regarding those cases are the crimes of conviction,

the resulting sentences, and a few barebones factual allegations; even taken

together, that minimal information is insufficient for us to make a proper

comparison. See Azmat, 805 F.3d at 1048 (noting that courts “need[] to have more

than the crime of conviction and the total length of the sentences to evaluate

alleged disparities” and that “[t]he underlying facts of the crime and all of the

individual characteristics are relevant”). And as for Irey, Latimer is not similarly

situated. For one thing, Latimer and Irey had different criminal history categories.

Irey, 612 F.3d at 1169. For another, Irey’s conduct of sexually torturing more than

50 young girls was so egregious that this Court found that a 210-month sentence

was substantively unreasonable and ordered that the district court impose the

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maximum sentence of 360 months. Irey, 612 F.3d at 1224-25. Here, by contrast,

Latimer’s 300-month sentence was well below the statutory maximum of 360

months. See Croteau, 819 F.3d at 1310 (holding that a sentence “well below the

statutory maximum penalty” indicates reasonableness).

* * *

For the foregoing reasons, we reject Latimer’s contentions that the district

court failed to adequately weigh the § 3553 factors and that the sentence created a

sentencing disparity.

AFFIRMED.