Case: 18-13761 Date Filed: 06/10/2019 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-13761 Non-Argument Calendar ________________________
D.C. Docket No. 1:15-cr-20106-RNS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PATRICK KILLEN, JR., a.k.a. rebeccatill05, a.k.a. beverlyhills05, a.k.a. chanelizzabel,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(June 10, 2019)
Before MARTIN, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM: Case: 18-13761 Date Filed: 06/10/2019 Page: 2 of 7
In an earlier opinion, this Court vacated the original sentence of 139 years
imposed on Patrick Killen, Jr., as substantively unreasonable. United States v.
Killen, 729 F. App’x 703, 717–18 (11th Cir. 2018) (unpublished). We remanded
his case for resentencing before a different district judge. Id. at 718. On remand,
that district judge imposed a 50-year sentence. This is the appeal of the 50-year
sentence. After careful review, we affirm.
A jury convicted Killen of three counts of coercing or employing a minor for
the purpose of producing child pornography, 18 U.S.C. § 2251(a), (e); six counts
of distribution or receipt of child pornography, 18 U.S.C. § 2252(a)(2), (b)(1); two
counts of extortion by interstate threats, 18 U.S.C. § 875(d); two counts of
possession of child pornography involving a visual depiction of a prepubescent
minor younger than 12, 18 U.S.C. § 2252(a)(4)(B), (b)(2); and two counts of
possession of child pornography, 18 U.S.C. § 2252(a)(4)(B), (b)(2). Killen, 729 F.
App’x at 706. We do not recount the conduct that led to these convictions, as it
was described in the Court’s earlier opinion in Killen’s case. Id. at 706–07.
Instead, we turn to Killen’s challenges to his sentence. Killen says the new
sentence violates our mandate. He also says his new sentence is procedurally and
substantively unreasonable. And he says his new sentence violates the Eighth
Amendment.
2 Case: 18-13761 Date Filed: 06/10/2019 Page: 3 of 7
We review de novo whether the district court violated our mandate. United
States v. Amedeo, 487 F.3d 823, 829 (11th Cir. 2007). In an earlier decision, this
Court ruled the district court imposed a substantively unreasonable sentence by
failing to consider the need to avoid unwarranted sentencing disparities, one of the
factors enumerated in 18 U.S.C. § 3553(a). Killen, 729 F. App’x at 717–18. As an
example of the importance of considering sentencing disparities in the context of
offenses like Killen’s, the Court pointed to United States v. Kapordelis, 569 F.3d
1291 (11th Cir. 2009). Killen, 723 F. App’x at 717–18. In Kapordelis, a district
court imposed a 35-year sentence on a more mature defendant whose crimes
involved actual child abuse and whose conduct spanned a longer period than
Killen’s. 569 F.3d at 1318–19. The Court contrasted Killen’s sentence with
Kapordelis’s. See Killen, 723 F. App’x at 717–18. Killen says the mandate
required the district court to sentence him to less than 35 years.
We conclude the district court complied with the mandate, which did not
require it to impose any particular sentence. Rather, the district court was required
on remand to consider the need to avoid unwarranted sentencing disparities. See
id. The district court followed that instruction. The district court considered the
sentence imposed in Kapordelis, the average sentence for offenders convicted of
producing child pornography, and sentences in other cases involving comparable
3 Case: 18-13761 Date Filed: 06/10/2019 Page: 4 of 7
conduct. It fashioned a sentence in light of other sentences in these comparable
cases. That analysis satisfied our mandate.
We review the reasonableness of a sentence for abuse of discretion. Gall v.
United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (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)
(quoting United States v. Campa, 459 F.3d 1121, 1174 (11th Cir. 2006) (en banc)).
Killen argues the district court misapplied the § 3553(a) factors, failed to
explain why it imposed consecutive sentences, and failed to explain why it
imposed the specific sentence it did. Each of these arguments fails.
The district court considered the § 3553(a) factors. Killen says the district
court did not consider Sentencing Commission reports he submitted that show
child pornography production defendants on average receive shorter sentences than
his. He is mistaken. The district court expressly considered the average sentence
for producing child pornography. And Killen did not show that his conduct was so
similar to the average child pornography production defendant that he should have
been sentenced in line with the mean. In settling on a 50-year sentence, the district
4 Case: 18-13761 Date Filed: 06/10/2019 Page: 5 of 7
court considered other sentences in cases involving comparable conduct. This was
no abuse of discretion.
Neither did the district court abuse its discretion in imposing consecutive
sentences. In making a decision about whether prison terms should run
concurrently or consecutively, a district court “shall consider, as to each offense
for which a term of imprisonment is being imposed, the factors set forth in section
3553(a).” 18 U.S.C. § 3584(b). Under U.S. Sentencing Guideline § 5G1.2(c), “[i]f
the sentence imposed on the count carrying the highest statutory maximum is
adequate to achieve the total punishment, then the sentences on all counts shall run
concurrently.” And under U.S. Sentencing Guideline § 5G1.2(d), “[i]f the
sentence imposed on the count carrying the highest statutory maximum is less than
the total punishment, then the sentence imposed on one or more of the other counts
shall run consecutively, but only to the extent necessary to produce a combined
sentence equal to the total punishment.”
Killen says these Guideline provisions required the district court to make an
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Case: 18-13761 Date Filed: 06/10/2019 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-13761 Non-Argument Calendar ________________________
D.C. Docket No. 1:15-cr-20106-RNS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PATRICK KILLEN, JR., a.k.a. rebeccatill05, a.k.a. beverlyhills05, a.k.a. chanelizzabel,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(June 10, 2019)
Before MARTIN, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM: Case: 18-13761 Date Filed: 06/10/2019 Page: 2 of 7
In an earlier opinion, this Court vacated the original sentence of 139 years
imposed on Patrick Killen, Jr., as substantively unreasonable. United States v.
Killen, 729 F. App’x 703, 717–18 (11th Cir. 2018) (unpublished). We remanded
his case for resentencing before a different district judge. Id. at 718. On remand,
that district judge imposed a 50-year sentence. This is the appeal of the 50-year
sentence. After careful review, we affirm.
A jury convicted Killen of three counts of coercing or employing a minor for
the purpose of producing child pornography, 18 U.S.C. § 2251(a), (e); six counts
of distribution or receipt of child pornography, 18 U.S.C. § 2252(a)(2), (b)(1); two
counts of extortion by interstate threats, 18 U.S.C. § 875(d); two counts of
possession of child pornography involving a visual depiction of a prepubescent
minor younger than 12, 18 U.S.C. § 2252(a)(4)(B), (b)(2); and two counts of
possession of child pornography, 18 U.S.C. § 2252(a)(4)(B), (b)(2). Killen, 729 F.
App’x at 706. We do not recount the conduct that led to these convictions, as it
was described in the Court’s earlier opinion in Killen’s case. Id. at 706–07.
Instead, we turn to Killen’s challenges to his sentence. Killen says the new
sentence violates our mandate. He also says his new sentence is procedurally and
substantively unreasonable. And he says his new sentence violates the Eighth
Amendment.
2 Case: 18-13761 Date Filed: 06/10/2019 Page: 3 of 7
We review de novo whether the district court violated our mandate. United
States v. Amedeo, 487 F.3d 823, 829 (11th Cir. 2007). In an earlier decision, this
Court ruled the district court imposed a substantively unreasonable sentence by
failing to consider the need to avoid unwarranted sentencing disparities, one of the
factors enumerated in 18 U.S.C. § 3553(a). Killen, 729 F. App’x at 717–18. As an
example of the importance of considering sentencing disparities in the context of
offenses like Killen’s, the Court pointed to United States v. Kapordelis, 569 F.3d
1291 (11th Cir. 2009). Killen, 723 F. App’x at 717–18. In Kapordelis, a district
court imposed a 35-year sentence on a more mature defendant whose crimes
involved actual child abuse and whose conduct spanned a longer period than
Killen’s. 569 F.3d at 1318–19. The Court contrasted Killen’s sentence with
Kapordelis’s. See Killen, 723 F. App’x at 717–18. Killen says the mandate
required the district court to sentence him to less than 35 years.
We conclude the district court complied with the mandate, which did not
require it to impose any particular sentence. Rather, the district court was required
on remand to consider the need to avoid unwarranted sentencing disparities. See
id. The district court followed that instruction. The district court considered the
sentence imposed in Kapordelis, the average sentence for offenders convicted of
producing child pornography, and sentences in other cases involving comparable
3 Case: 18-13761 Date Filed: 06/10/2019 Page: 4 of 7
conduct. It fashioned a sentence in light of other sentences in these comparable
cases. That analysis satisfied our mandate.
We review the reasonableness of a sentence for abuse of discretion. Gall v.
United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (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)
(quoting United States v. Campa, 459 F.3d 1121, 1174 (11th Cir. 2006) (en banc)).
Killen argues the district court misapplied the § 3553(a) factors, failed to
explain why it imposed consecutive sentences, and failed to explain why it
imposed the specific sentence it did. Each of these arguments fails.
The district court considered the § 3553(a) factors. Killen says the district
court did not consider Sentencing Commission reports he submitted that show
child pornography production defendants on average receive shorter sentences than
his. He is mistaken. The district court expressly considered the average sentence
for producing child pornography. And Killen did not show that his conduct was so
similar to the average child pornography production defendant that he should have
been sentenced in line with the mean. In settling on a 50-year sentence, the district
4 Case: 18-13761 Date Filed: 06/10/2019 Page: 5 of 7
court considered other sentences in cases involving comparable conduct. This was
no abuse of discretion.
Neither did the district court abuse its discretion in imposing consecutive
sentences. In making a decision about whether prison terms should run
concurrently or consecutively, a district court “shall consider, as to each offense
for which a term of imprisonment is being imposed, the factors set forth in section
3553(a).” 18 U.S.C. § 3584(b). Under U.S. Sentencing Guideline § 5G1.2(c), “[i]f
the sentence imposed on the count carrying the highest statutory maximum is
adequate to achieve the total punishment, then the sentences on all counts shall run
concurrently.” And under U.S. Sentencing Guideline § 5G1.2(d), “[i]f the
sentence imposed on the count carrying the highest statutory maximum is less than
the total punishment, then the sentence imposed on one or more of the other counts
shall run consecutively, but only to the extent necessary to produce a combined
sentence equal to the total punishment.”
Killen says these Guideline provisions required the district court to make an
individual determination as to the sentence for each offense charged, rather than
“merely arriv[ing] at a final sentence.” Again, he is mistaken. This Court’s
precedent holds that § 3584(b) “authorizes the district court to impose a
consecutive sentence provided that it first considers the § 3553(a) factors.” United
States v. Covington, 565 F.3d 1336, 1346–47 (11th Cir. 2009). “Once those
5 Case: 18-13761 Date Filed: 06/10/2019 Page: 6 of 7
factors are considered, the only limitation on running sentences consecutively is
that the resulting total sentence must be reasonable.” Id. at 1347. The district
court considered the § 3553(a) factors in fashioning Killen’s sentence. There was
thus no abuse of discretion.
We also conclude the district adequately explained its reasons for imposing a
50-year sentence. Contrary to Killen’s position, the district court gave a lengthy
explanation for the sentence it imposed, and it made clear that it had thoroughly
reviewed the record. Our review of the sentencing transcript convinces us the
district court gave the sentence due consideration and made its reasons plain.
Finally, “we review de novo the legality of a sentence under the Eighth
Amendment.” United States v. McGarity, 669 F.3d 1218, 1255 (11th Cir. 2012).
The Eighth Amendment prohibits the infliction of cruel and unusual punishments.
U.S. Const. amend. VIII. In evaluating an Eighth Amendment challenge to a
sentence in a non-capital case, we must first “make a threshold determination that
the sentence imposed is grossly disproportionate to the offense committed.”
United States v. Johnson, 451 F.3d 1239, 1243 (11th Cir. 2006) (per curiam)
(quotation marks omitted). The defendant bears the burden of making this
threshold showing. Id. In general, a defendant whose sentence falls within the
limits imposed by statute cannot make the threshold showing of gross
disproportionality, as we generally defer to Congress’s “broad authority to
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determine the type and limits of punishments for crimes.” Id. (quotation marks
omitted).
Killen has not made the threshold showing. His sentence fell within the
statutory range and was a substantial variance downward from his guideline range.
He committed serious offenses with lasting consequences. We conclude his
sentence was not grossly disproportionate and thus does not violate the Eighth
AFFIRMED.