USA v. Michael Knight

Filing

Opinion issued by court as to Appellant Michael E. Knight. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

Case: 12-11068

Date Filed: 11/14/2012

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-11068
Non-Argument Calendar
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D.C. Docket No. 3:11-cr-00077-LC-1

UNITED STATES OF AMERICA,
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Plaintiff-Appellee,
versus

MICHAEL E. KNIGHT,
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Defendant-Appellant.

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Appeal from the United States District Court
for the Northern District of Florida
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(November 14, 2012)
Before MARTIN, JORDAN and ANDERSON, Circuit Judges.
PER CURIAM:
Michael Knight appeals his sentence of 72 months imprisonment, which

Case: 12-11068

Date Filed: 11/14/2012

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was imposed following his plea of guilty to one count of possession of child
pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2). The district
court determined that Knight’s offense level was 29 and his criminal history
category was I, thus yielding a guideline range of 87 months to 108 months
imprisonment. The district court disagreed, however, with the policy underlying
the guidelines’ application of a two-level enhancement in the offense level for
Knight’s use of a computer. The district court therefore varied downward and
imposed a sentence of 72 months imprisonment. On appeal, Knight asks us to set
aside this sentence on the ground that it is both procedurally and substantively
unreasonable.
I.
“A district court should ensure that it commits no procedural error in
imposing sentence.” United States v. Tobin, 676 F.3d 1264, 1309 (11th Cir.
2012). A procedural error occurs if the district court 1) fails to properly calculate
the guideline range, 2) treats the guidelines as mandatory, 3) fails to consider the
18 U.S.C. § 3553(a) factors, 4) selects a sentence based on clearly erroneous facts,
or 5) fails to adequately explain the chosen sentence. See United States v.
Wayerski, 624 F.3d 1342, 1353 (11th Cir. 2010).
Knight first argues that the district court erred because it treated the
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guidelines as mandatory. We reject this argument because the district court’s
decision to impose a sentence below the guideline range clearly demonstrates its
understanding that the guidelines are advisory. Knight also asserts that the district
court did not adequately explain the sentence it imposed. He specifically notes
that the district court did not discuss the nature and circumstances of his offense or
his personal history and characteristics. This argument also fails.
We have long held that a district court is not required to “discuss each of the
§ 3553(a) factors” at sentencing. United States v. Scott, 426 F.3d 1324, 1329
(11th Cir. 2005). Instead, it is sufficient for a district court to acknowledge that it
has considered the defendant’s arguments and the § 3553(a) factors. See id. at
1329–30. Here, the district court confirmed at sentencing that it had reviewed the
sentencing memorandum Knight filed in support of a downward variance. That
document specifically discussed the nature of the offense, as well as the history
and characteristics of the defendant. Also, the district court stated at sentencing
that it had considered the § 3553(a) factors.1 The district court therefore did all
that it was required to do. See id.
II.

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In light of this, we also reject Knight’s argument that the district court failed to consider
the § 3553(a) factors.
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Knight also challenges his sentence as substantively unreasonable. We
evaluate the substantive reasonableness of a sentence under the deferential
abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 46, 128 S. Ct.
586, 594 (2007). Under that standard, we may 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.” United States v. Irey, 612
F.3d 1160, 1190 (11th Cir. 2010) (en banc) (quotation marks omitted). Although
we do not presume that a sentence falling within a guideline range is reasonable,
we ordinarily expect that it is. See United States v. Talley, 431 F.3d 784, 787–88
(11th Cir. 2005).
Knight’s principal argument in this regard is that the sentencing guidelines
governing child pornography offenses, U.S.S.G. § 2G2.2, are fundamentally
flawed and that, as a result, the district court erred by giving them significant
weight. Knight draws our attention to the Second Circuit’s decision in United
States v. Dorvee, 616 F.3d 174 (2d Cir. 2010). There, our sister circuit vacated a
within-guideline sentence for a child pornography offense as substantively
unreasonable. Id. at 176. The court observed that U.S.S.G. § 2G2.2 is “an
eccentric Guideline of highly unusual provenance which, unless carefully applied,
can easily generate unreasonable results.” Id. at 188.
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The government is correct to point out, however, that this Court has
previously rejected the suggestion that U.S.S.G. § 2G2.2 is inherently flawed. See
Wayerski, 624 F.3d at 1354–55 (dismissing the argument that “the Sentencing
Guidelines for child-pornography offenses are irrational and not empirically
based”); United States v. Pugh, 515 F.3d 1179, 1201 n.15 (11th Cir. 2008)
(rejecting the argument that the child-pornography guidelines “exhibit the
deficiencies” previously found in the crack-cocaine guidelines). In view of this
precedent, which has not been overruled by this Court sitting en banc or by the
Supreme Court, we must reject Knight’s argument. See United States v. Kaley,
579 F.3d 1246, 1255 (11th Cir. 2009); accord United States v. Scott, No. 1113617, 2012 WL 1648872, at *1 (11th Cir. May 11, 2012).
III.
For these reasons, we affirm the judgment of the district court.
AFFIRMED.

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