Case: 17-15036 Date Filed: 09/12/2018 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-15036 Non-Argument Calendar ________________________
D.C. Docket No. 3:16-cr-00057-MCR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD D. WATERSON, II,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Northern District of Florida ________________________
(September 12, 2018)
Before NEWSOM, BRANCH, and FAY, Circuit Judges.
PER CURIAM: Case: 17-15036 Date Filed: 09/12/2018 Page: 2 of 7
Richard Waterson, II appeals his sentences for attempted enticement of a
minor in violation of 18 U.S.C. § 2422(b), receipt of child pornography in violation
of 18 U.S.C. §§ 2252A(a)(2) and (b)(1), and committing a felony offense while
registered as a sex offender in violation of 18 U.S.C. § 2260A. On appeal, he
argues that his sentences are substantively unreasonable because they were greater
than necessary considering all the 18 U.S.C. § 3553(a) factors, and moreover were
disproportionate in violation of the Eighth Amendment. He argues further that his
sentences are procedurally unreasonable because the district court improperly
double-counted his prior conduct in order to justify two separate sentencing
enhancements.
I
A sentence may be procedurally unreasonable if the district court improperly
calculates the guideline range, treats the Guidelines as mandatory rather than
advisory, fails to consider the § 3553(a) factors, bases the sentence on clearly
erroneous facts, or fails to adequately explain the chosen sentence. Gall v. United
States, 552 U.S. 38, 51 (2007). The weight given to any particular § 3553(a) factor
is within the sound discretion of the district court. United States v. Williams, 526
F.3d 1312, 1322 (11th Cir. 2008).
We review claims of impermissible double-counting de novo. United States
v. Webb, 665 F.3d 1380, 1382 (11th Cir. 2012). Impermissible double-counting
2 Case: 17-15036 Date Filed: 09/12/2018 Page: 3 of 7
occurs only if a part of the Guidelines is applied to increase a defendant’s
punishment on account of a kind of harm that was already fully accounted for by
applying another part of the Guidelines. Id. A district court may validly double-
count a factor if the Sentencing Commission intended that result and if each
relevant guideline provision addresses conceptually separate notions related to
sentencing. Id. Absent a specific direction to the contrary, we presume that the
Sentencing Commission intended that separate sections apply cumulatively, and,
consequently, defendants “asserting a double counting claim ha[ve] a tough task.”
Id.
In United States v. Rothenberg, we previously upheld the application of both
U.S.S.G. § 2G2.2(b)(5) and U.S.S.G. § 4B1.5(b)(1) in enhancing the defendant’s
sentence, reasoning that the application of two pattern-of-activity enhancements
did not constitute double-counting “because they were applied, respectively, to two
separate and distinct offenses involving different conduct and different harms.”
610 F.3d 621, 624 n.4 (11th Cir. 2010).
The two sentencing enhancements applied in Waterson’s case address
different harms. Section 2G2.2 of the Sentencing Guidelines provides for a five-
level increase if “the defendant engaged in a pattern of activity involving the
sexual abuse or exploitation of a minor.” U.S.S.G. § 2G2.2(b)(5). Likewise,
section 4B1.5 of the Guidelines provides for a five-level increase if “the defendant
3 Case: 17-15036 Date Filed: 09/12/2018 Page: 4 of 7
engaged in a pattern of activity involving prohibited sexual conduct,” and neither
§ 4B1.1 nor subsection (a) of § 4B1.5 applies. U.S.S.G. § 4B1.5(b)(1).
In this case, the court did not err in applying both pattern-of-activity
enhancements. Waterson does not point to any provision or commentary notes
indicating that the Sentencing Commission did not intend for § 2G2.2(b)(5) and §
4B1.5(b)(1) to apply cumulatively. Webb, 665 F.3d at1382. Significantly, this
Court has previously upheld the application of both enhancements simultaneously,
further supporting the district court’s simultaneous application of the
enhancements in this case. See Rothenberg, 610 F.3d at 624–25. In Rothenberg,
both enhancements were based on two separate instances in the defendant’s past
where he had engaged in inappropriate behavior concerning a minor. Id. at 624
n.4. Likewise, in this case, Waterson had engaged in sexual misconduct involving
a minor on at least two occasions prior to committing the instant offense.
Our precedent establishes that the district court did not impermissibly
double-count Waterson’s conduct in applying the enhancements under §
4B1.5(b)(1) and § 2G2.2(b)(5).
II
Once we determine that a sentence is procedurally sound, we must examine
whether the sentence is substantively reasonable in light of the record and the
§ 3553(a) factors. Gall, 552 U.S. at 51. We review the substantive reasonableness
4 Case: 17-15036 Date Filed: 09/12/2018 Page: 5 of 7
of a sentence for abuse of discretion. United States v. Rosales-Bruno, 789 F.3d
1249, 1255 (11th Cir. 2015). The party who challenges the sentence’s substantive
reasonableness bears the burden of showing it is unreasonable in light of the record
and § 3553(a) factors. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir.
2010). “In determining a sentence, a district court must evaluate all of the
§ 3553(a) factors but can attach ‘great weight’ to one factor over others.” United
States v. Johnson, 803 F.3d 610, 618 (11th Cir. 2015). We reverse only if left with
the 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. United States v. Irey, 612
F.3d 1160, 1190 (11th Cir. 2010) (en banc). We may, but are not required to,
apply a presumption of reasonableness to a within-Guidelines sentence. Gall, 552
U.S. at 51.
We recognize a “narrow proportionality principle that applies to noncapital
sentences.” United States v. McGarity, 669 F.3d 1218, 1255 (11th Cir. 2012).
Successful proportionality challenges under the Eighth Amendment are
exceedingly rare because we give great deference to Congress in determining the
types and limits of punishments. Id. at 1256.
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Case: 17-15036 Date Filed: 09/12/2018 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-15036 Non-Argument Calendar ________________________
D.C. Docket No. 3:16-cr-00057-MCR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD D. WATERSON, II,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Northern District of Florida ________________________
(September 12, 2018)
Before NEWSOM, BRANCH, and FAY, Circuit Judges.
PER CURIAM: Case: 17-15036 Date Filed: 09/12/2018 Page: 2 of 7
Richard Waterson, II appeals his sentences for attempted enticement of a
minor in violation of 18 U.S.C. § 2422(b), receipt of child pornography in violation
of 18 U.S.C. §§ 2252A(a)(2) and (b)(1), and committing a felony offense while
registered as a sex offender in violation of 18 U.S.C. § 2260A. On appeal, he
argues that his sentences are substantively unreasonable because they were greater
than necessary considering all the 18 U.S.C. § 3553(a) factors, and moreover were
disproportionate in violation of the Eighth Amendment. He argues further that his
sentences are procedurally unreasonable because the district court improperly
double-counted his prior conduct in order to justify two separate sentencing
enhancements.
I
A sentence may be procedurally unreasonable if the district court improperly
calculates the guideline range, treats the Guidelines as mandatory rather than
advisory, fails to consider the § 3553(a) factors, bases the sentence on clearly
erroneous facts, or fails to adequately explain the chosen sentence. Gall v. United
States, 552 U.S. 38, 51 (2007). The weight given to any particular § 3553(a) factor
is within the sound discretion of the district court. United States v. Williams, 526
F.3d 1312, 1322 (11th Cir. 2008).
We review claims of impermissible double-counting de novo. United States
v. Webb, 665 F.3d 1380, 1382 (11th Cir. 2012). Impermissible double-counting
2 Case: 17-15036 Date Filed: 09/12/2018 Page: 3 of 7
occurs only if a part of the Guidelines is applied to increase a defendant’s
punishment on account of a kind of harm that was already fully accounted for by
applying another part of the Guidelines. Id. A district court may validly double-
count a factor if the Sentencing Commission intended that result and if each
relevant guideline provision addresses conceptually separate notions related to
sentencing. Id. Absent a specific direction to the contrary, we presume that the
Sentencing Commission intended that separate sections apply cumulatively, and,
consequently, defendants “asserting a double counting claim ha[ve] a tough task.”
Id.
In United States v. Rothenberg, we previously upheld the application of both
U.S.S.G. § 2G2.2(b)(5) and U.S.S.G. § 4B1.5(b)(1) in enhancing the defendant’s
sentence, reasoning that the application of two pattern-of-activity enhancements
did not constitute double-counting “because they were applied, respectively, to two
separate and distinct offenses involving different conduct and different harms.”
610 F.3d 621, 624 n.4 (11th Cir. 2010).
The two sentencing enhancements applied in Waterson’s case address
different harms. Section 2G2.2 of the Sentencing Guidelines provides for a five-
level increase if “the defendant engaged in a pattern of activity involving the
sexual abuse or exploitation of a minor.” U.S.S.G. § 2G2.2(b)(5). Likewise,
section 4B1.5 of the Guidelines provides for a five-level increase if “the defendant
3 Case: 17-15036 Date Filed: 09/12/2018 Page: 4 of 7
engaged in a pattern of activity involving prohibited sexual conduct,” and neither
§ 4B1.1 nor subsection (a) of § 4B1.5 applies. U.S.S.G. § 4B1.5(b)(1).
In this case, the court did not err in applying both pattern-of-activity
enhancements. Waterson does not point to any provision or commentary notes
indicating that the Sentencing Commission did not intend for § 2G2.2(b)(5) and §
4B1.5(b)(1) to apply cumulatively. Webb, 665 F.3d at1382. Significantly, this
Court has previously upheld the application of both enhancements simultaneously,
further supporting the district court’s simultaneous application of the
enhancements in this case. See Rothenberg, 610 F.3d at 624–25. In Rothenberg,
both enhancements were based on two separate instances in the defendant’s past
where he had engaged in inappropriate behavior concerning a minor. Id. at 624
n.4. Likewise, in this case, Waterson had engaged in sexual misconduct involving
a minor on at least two occasions prior to committing the instant offense.
Our precedent establishes that the district court did not impermissibly
double-count Waterson’s conduct in applying the enhancements under §
4B1.5(b)(1) and § 2G2.2(b)(5).
II
Once we determine that a sentence is procedurally sound, we must examine
whether the sentence is substantively reasonable in light of the record and the
§ 3553(a) factors. Gall, 552 U.S. at 51. We review the substantive reasonableness
4 Case: 17-15036 Date Filed: 09/12/2018 Page: 5 of 7
of a sentence for abuse of discretion. United States v. Rosales-Bruno, 789 F.3d
1249, 1255 (11th Cir. 2015). The party who challenges the sentence’s substantive
reasonableness bears the burden of showing it is unreasonable in light of the record
and § 3553(a) factors. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir.
2010). “In determining a sentence, a district court must evaluate all of the
§ 3553(a) factors but can attach ‘great weight’ to one factor over others.” United
States v. Johnson, 803 F.3d 610, 618 (11th Cir. 2015). We reverse only if left with
the 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. United States v. Irey, 612
F.3d 1160, 1190 (11th Cir. 2010) (en banc). We may, but are not required to,
apply a presumption of reasonableness to a within-Guidelines sentence. Gall, 552
U.S. at 51.
We recognize a “narrow proportionality principle that applies to noncapital
sentences.” United States v. McGarity, 669 F.3d 1218, 1255 (11th Cir. 2012).
Successful proportionality challenges under the Eighth Amendment are
exceedingly rare because we give great deference to Congress in determining the
types and limits of punishments. Id. at 1256. Accordingly, the burden is on the
defendant to show that his sentence is grossly disproportionate to the crime
committed. Id. “In general, a sentence within the limits imposed by statute is
5 Case: 17-15036 Date Filed: 09/12/2018 Page: 6 of 7
neither excessive nor cruel and unusual under the Eighth Amendment.” United
States v. Johnson, 451 F.3d 1239, 1243 (11th Cir. 2006) (quoting United States v.
Moriarty, 429 F.3d 1012, 1024 (11th Cir. 2005)).
In this case, Waterson has not met his burden of showing that his sentences
are substantively unreasonable. Tome, 611 F.3d at 1378. The court placed great
emphasis on its need to protect the public, given the deeply disturbing nature of
Waterson’s crimes, and was entitled to weigh that factor more heavily than the
other § 3553(a) factors. Johnson, 803 F.3d at 618. The record supports the district
court’s concerns about the danger Waterson poses to the public. The PSI noted
that Waterson had openly pursued pedophilia and incest as far back as 2005.
Significantly, in committing the instant offense, Waterson took substantial steps
toward actually having sex with what he believed to be a 13-year-old girl,
demonstrating his willingness to pursue sex with a child. Further, the district court
expressed concerns over Waterson’s risk of recidivism. Those concerns are
supported by the record. Waterson committed the instant offense while on
probation, less than one year after he had been released from a term of
imprisonment related to conviction for another sexual offense. Waterson’s
forensic evaluation also suggests that he poses an average to above-average risk of
recidivism. From these record facts, the district court drew its conclusion that
Waterson poses a substantial risk to public safety. In light of these facts, we are
6 Case: 17-15036 Date Filed: 09/12/2018 Page: 7 of 7
not left with the “firm conviction” that the district court erred in imposing its
sentence, particularly given that the sentence imposed is within the Guideline
range, and not the maximum of life. Irey, 612 F.3d at 1190; Gall, 552 U.S. at 51.
Nor has Waterson has shown that his sentence was disproportionate under
the Eighth Amendment. Waterson did not raise his Eighth Amendment claim
below, so we review only for plain error. Puckett v. United States, 556 U.S. 129,
135 (2009). Given that Waterson has not cited to any authority explicitly
rendering his sentence unconstitutional under the circumstances of his case, he has
not demonstrated that any alleged error was plain. United States v. Madden, 733
F.3d 1314, 1322 (11th Cir. 2013). Accordingly, his Eighth Amendment claim fails
under plain error review. Puckett, 556 U.S. at 135. Moreover, even if reviewed de
novo, Waterson’s claim fails. McGarity, 669 F.3d at 1255. He has failed to cite
any cases in which people who committed similar crimes were given dramatically
lower sentences, or explain how his own sentences are unreasonable. Moreover, in
light of the extremely serious nature of his offense, and the depth and longevity of
his sexual deviancy, Waterson has not demonstrated that his sentences, which fall
well within the Guidelines range, are excessive or cruel and unusual. Johnson, 451
F.3d at 1243.
AFFIRMED.