[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 16

- 11065

________________________ D.C. Docket No. 6:15

- cr - 00190

- PGB

- GJK

- 1

UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus DAVID RYAN ALBERTS, Defendant

- Appellant.

________________________ Appeal from the United States District Court for the Middle District of Florida

_______ _________________ (June 13 , 2017) Before MARTIN, JILL PRYOR, and ANDERSON, Circuit Judges. MARTIN, Circuit Judge: This is David Alberts ’s appeal of his 120

- month prison sentence imposed after he pled guilty to receiving and possessing child pornography. Mr. Alberts

Case: 16-11065 Date Filed: 06/13/2017 Page: 1 of 162 says the District Court made a mistake when it raised by five his offense level under United States Sentencing Guidelines (“USSG”) § 2G2.2(b)(5) . Mr. Albert s ’ s sentence was made longer , as called for under § 2G2.2(b)(5), once the District Court found that he “ engag ed in a pattern of activity involving the sexual abus e or exploitation of a minor.” He argues he should not have received this longer sentence under § 2G2.2(b)(5) because he himself was only a minor when
any sexual abuse of other minors took place . Mr. Albert s also argues he should not be sentence d more harshly now, because any bad acts he committed as a teenager were decades ago. He also argues that his sentence is unreasonable. After careful review, and with the benefit of or al argument, we affirm his sentence.
I. BACKGROUND Based on an investigative lead, Federa l Bureau of Investigation agents in Orlando, Florida learned that in late February and early March of 2015, Mr. Alberts had been accessing a website that regularly h o sted child pornography. On August 10, 2015, law enforcement officers went to Mr. Alberts’s home and interviewed him. During the interview , Mr. Alberts admitted to accessing, receiving , and possessing child pornography for the last six months

. He also acknowledged that he had looked at child pornography as long as 15 years ago. Upon searching his thumb drive, the agents found over 160 images of child pornography. A federal grand jury then indicted Mr. Alberts for (1) one count of

Case: 16-11065 Date Filed: 06/13/2017 Page: 2 of 163 receiving child pornography in violation of 18 U.S.C. § § 2252A(a)(2)(A) and (b)(1); and (2) one count of possessing child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2). Mr. Alb erts pled guilty to both counts. He did so with no plea agreement with the government

. T he Presenten ce Investigation Report (“PSR”) sets out that Mr. Alberts admitted to engaging in sexual acts with his younger relatives on different occasions , when they were under the age of 12 and “he was approximately 16 years old .” The PSR contains som e details about those incidents

. The PSR also says that Mr. Alberts admitted to searching for images depicting incest, and indeed, law enforcement agents found n umerous incest

- related stories o n his thumb drive

. The PSR explained that as a child, Mr. Alberts suffered physical, emotional, and sexual abuse at the hands of various family members. Based on his teenage sex

acts with his younger relatives , the PSR assessed a five

- level increase to his offense level under USSG § 2G2.2(b )(5) , for “engag[ing] in a pattern of activity involving the sexual abuse or exploitation of a minor.” So although the PSR also reflected that Mr. Alberts had served in the United States Military for 20 years and received commendations for his service, it calculated his offense level to be 33 and his cr iminal history category to be I. This resulted in a sentencing guideline range of 135 to 168 months.

Case: 16-11065 Date Filed: 06/13/2017 Page: 3 of 164 At sentencing, Mr. Alberts did not challenge the factual accuracy of the
PSR , but he objected to the § 2G2.2(b)(5) enhancement. H e argued the enhancement did not apply to him for three reasons. First, he himself was a minor when he engaged in sexual acts with his younger relatives

. Second, those events happened about 30 years ago and “there is no evidence that [he] has sexually abused or exploited a child as an adult

. ” Third, the facts surrounding those events are “vague and not corroborated or [] investigated,” such that it is “somewhat unclear as to what may or may not have happened with those two children.” Mr. Alberts requested a downward variance based in part on his military service; the extensive physical, emotional, and sexual abuse he suffered a s a child at the hands of his family members ; and the depr ession and impaired psychological development he suffered as a result of this abuse

. The District Court adopted the facts set out in the PSR, and overruled Mr. Alberts’s objection to the five

- level “pattern of activity” increase under § 2G2.2(b)(5) . It accepted the determination that Mr. Albert s ’s guidelines range

was 135 to 168 months. Then, in deciding Mr. Alberts’s sentence, the court expressly identified and weighed several aggravating and mitigating factors. As aggravators, the court discuss ed the nature and circumstances of Mr. Alberts’s crime, observing that it involved images of very young children and “fairly sophisticated” use of a special network that enabled him to access child

Case: 16-11065 Date Filed: 06/13/2017 Page: 4 of 165 pornograph y on the internet anonymously. The court hi ghli ghted the seriousness of Mr. Albert s ’s offense in terms of the harm done to child victims when child pornography is circulated. The court emphasized the need for punishment and specific deterrence. It also factored in his past sexual con duct with his younger relatives and his “long ter m” and “very serious” preoccupation with “sex with very young children.” The sentencing judge told Mr. Alberts “[y]our pattern of behavior over the years demonstrates to me you do pose a danger to the community and you need a period of time where you can receive the treatment that you should have.” The court also discussed mitigating factors. Specifically, the court recognized the extensive abuse Mr. Alberts suffered as a child, as well as the mental health is sues he experi enced as a result of that abuse. The court noted Mr. Albert s ’s long and decorated service in the military, a s well as the impact the sentence would have on his family, including his daughter. In light of all these circumstances , the D istri ct Court decided to sentence Mr. Albert s below his guideline range

. The court said that allowing § 2G2.2(b)(5) to raise Mr. Albert s ’s offense level by five “slightly overstates the seriousness of [his] offense conduct” because the sexual acts he enga ged in with his younger relatives happened so long ago. Thus, “after considering all the factors set forth in” 18
U.S.C. § 3553, the court sentenced Mr. Alberts to 120

- months imprisonment.

Case: 16-11065 Date Filed: 06/13/2017 Page: 5 of 166 II. THE USSG § 2G2.2(b)(5) ENHANCEME NT Mr. Alberts challenges the longer sentence he got on account of USSG § 2G2.2(b)(5) on three grounds. We address each argument in turn. In doing so, we review the District Court’s findings of fact supporting the longer sentence for clear error

. United States v. McGarity , 669 F. 3 d 1218, 1232 (11th Cir. 2012 ). The government “bears the burden of establishing by a preponderance of the evidence the facts necessary to support a sentencing enhancement.” United States v. Askew , 193 F.3d 1181, 1183 (11th Cir. 1999). Further, whether a particular guideline enhancement applies to a given set of facts is a question of law we review de novo

. McGarity , 669 F.3d at 1232.
A. SUFFICIENCY OF FACTS First, Mr. Alberts says the government did not put forward sufficient evidence to justify giving him a longer sentence because of a “pattern of activity” as defined by § 2G2.2(b)(5)

. The PSR and the District Court applied this enhancement based on Mr. Alberts’s own admission to law enforcement officers. As we’ve said, Mr. Alberts did not object at sentencing to the facts included in the
PSR on this subject. Neither does he deny those facts on appeal , nor does he claim that his admission was mischaracterized. Instead , he argues his admission was not
sufficient to suppo rt the enhancement because what he can recall about these

Case: 16-11065 Date Filed: 06/13/2017 Page: 6 of 167 incidents from so long ago did not constitute “competent and reliable evidence” and it was not corroborated by other evidence. Using the standard we must for reviewing these findings, there was en ough evidence to support the District Court’s decision to find a “pattern of activity

. ”
A lthough Mr. Alberts’s admission was about events from 30 years ago, there was nothing else to suggest it was not reliable. H e argued below that his admission was “vague, ” but our review of the record does not convince us this is so. His admission included spe cific details about the acts he engaged in with his young relatives. Beyond that , his admission was corroborated by other indica tors of his long

- standing pre occupation with incest and pedophilia, including the incest

related stories found on his thumb drive and his admission that he had been looking at child pornography for at least 15 years. On this record, we cannot say we have a “definite and firm convicti on” that the District Court’s findings of fact regarding the § 2G2.2(b)(5) enhancement were erroneous. See United States v.
Foster , 155 F.3d 1329, 1331 (11th Cir. 1998). T he District Court did not clearly err in finding the government proved the factual basis for the enhancement by a preponderance of the evidence. See Askew , 193 F.3d at 1183.
B. TEMPORAL PROXIMITY Second, Mr. Alberts says even assuming he engaged in sexual acts with his younger relatives when he was a teenager, this h appened 30 years ago and is

Case: 16-11065 Date Filed: 06/13/2017 Page: 7 of 168 therefore “too attenuated” and “egregiously too far into the past as a matter of law”

to support a “pattern of activity” enhancement under USSG § 2G2.2(b)(5). He concedes this argument is foreclosed by this Court’s binding precedent in United
States v. Turner , 626 F.3d 566 , 572 (11th Cir. 2010) (holding that § 2G2.2(b)(5) “does not place a time limit on past instances of sexual abuse or exploitation a court may consider in finding a pattern of activity”). Ho wever he wishes to preserve the argument for further appellate review. And so he has

. C. MINOR

- ON

- MINOR CONDUCT
A s discussed earlier , USSG § 2G2.2(b)(5) increases a defendant’s offense level by five levels if the defendant has ever “engaged in a pattern of activity involving the sexual abuse or exploitation of a minor.” Mr. Alberts ’s third argument is that he should not be punished for a “pattern of activity” because he himself was a minor at the time of these earlier acts

. The question is whether acts of a defendant , done when he was a minor , can support the imposition of a longer

sentence under USSG § 2G2.2(b)(5). Both the Third Circuit and the Eighth Circuit have summarily affirmed district judges who enhanced a criminal defendant’s sentence based on that defendant’s juvenile conduct against other minors. See United States v. Olfano , 503 F.3 d 240, 243 (3d Cir. 2007); United States v. Woodard , 694 F.3d 950, 953

– 54 (8th Cir. 2012). T he Second Circuit also held that juvenile conduct against other minors can support a § 2G2.2(b)(5) enhancement ,

Case: 16-11065 Date Filed: 06/13/2017 Page: 8 of 169 but its opinion discussed this issue in some depth

. United States v. Reingold , 731 F.3d 204 (2d Cir. 2013).
In Reingold , the Second Circuit reversed a district court’s decision to “exclude[] from § 2G2.2(b)(5) con sideration [] Reingold’s first two sexual contacts with his half

- sister on the ground that defendant was then himself a minor.” Id. at 224. The Reingold court gave two reasons for its holding . First, § 2G2.2(b)(5)’s application notes define “sexual abus e or exploitation” to inclu de conduct described in particular sections of Title 18, some of which contemplate imposing criminal penalties on minors. See USSG § 2G2.2 cmt. n.1. For example, the application notes say “sexual abuse or exploitation” includes conduct described in 18 U.S.C. § 2241 , and that section makes it a crime to knowingly engage “in a sexual act with another person who has not attained the age of 12.” 18 U.S.C. § 224 1(c). T he Second Circuit rightly acknowledged , “§ 2241(c) does not limit its coverage to offenders over the age of 18.” Reingold , 731 F.3d at 225. So if minors can be prosecuted under § 2241 , that means acts committed by a defendant when he was a minor can in turn support a § 2G2.2(b)(5) enhancement later on

. See id. Second, the Reingold court observed that other provisions of the Guidelines explicitly condition their enhancements “on whether relevant offenses were adult convictions.” Id. at 224

– 25. To the contrary , neither § 2G2.2(b)(5) nor its application notes “require consideration of a defendant’s age at the time of past

Case: 16-11065 Date Filed: 06/13/2017 Page: 9 of 1610 instances of sexual abuse or exploitation.” Id

. at 225. This also suggests that acts of sexual abuse or exploitation committed by mi nors against other minors can support an enhancement under § 2G2.2(b)(5). See id. We find the Second Circuit’s reasoning in Reingold persuasive

. In particular, § 2G2.2(b)(5)’s application notes define “sexual abuse or exploitat ion” by explicitly referring to several code sections under which minors can be convicted. 1 Nothing in § 2G2.2(b)(5) limits it s application to adult conduct. Our analysis there fore leads us to conclude that a cts committed by defendants when they were minors may support a “ p attern of activity” enhancement under USSG § 2G2.2(b)(5). This conclusion does not , however, end our inquiry. Although the “pattern of activity” sentencing enhancement can be supported by minor

- on - minor conduct , it does not follow that all such conduct can support the enhancement. Instead, only conduct that falls within one of the statutory section s referenced in the definition of “sexual abuse or exploitation” in § 2G2.2(b)(5)’s application notes can justify a “pattern of activity” enhancement.

1 In addition to 18 U.S.C. § 2241, the definition of “ sexual abuse or exploitation” in the application notes refers to 18 U.S.C. § 2243. See USSG § 2G2.2 cmt. n.1. Like § 2241, § 2243 criminalizes acts committed by minors. Specifically, a person violates § 2243 if he knowingly engages in a sexual act with a minor who is ( 1) 12 to 15 years of age; and (2) at least four years younger than him. See 18 U.S.C. § 2243(a). Thus, a 16

- year - old who knowingly engages in a sexual act with a 12

- year - old could be convicted under § 2243.

Case: 16-11065 Date Filed: 06/13/2017 Page: 10 of 1611 For Mr. Alberts , his actions from 30 years ago fall within the reach of § 2G2.2(b)(5). Again, § 2G2.2(b)(5)’s application notes define “sexual abuse or exploitation” to include conduct described in 18 U.S.C. § 2241, and § 2241(c) makes it a crime to knowingly engag e in a “sexual act” with someone younger than 12 years old. Mr. Alberts admitted to engaging in sexual acts 2 with his young er relatives on different occasions when he was “approximately” 16 years old. Section 2241(c) therefore criminalizes Mr. Albe rts’s juvenile conduct. As a result, that conduct can be used to support a “pattern of activity” enhancement under USSG § 2G2.2(b)(5).
III. REASONABLENESS OF THE SENTENCE Mr. Alberts also argues his sentence is both procedurally and substantively unreasonable . We review the reasonableness of a sentence for abuse of discretion.
Turner , 626 F.3d at 573. In reviewing whe ther a sentence is reasonable from a procedural standpoint , we must “ensure that the district court committed no significant proce dural error” during sentencing. United States v. Pugh , 515 F.3d 1179, 1190 (11th Cir. 2008) (quotation omitted) . A district court commits a procedural error if it considers an improper sentencing factor. See United States v. Vandergrift , 754 F.3d 1303, 1308 (11th Cir. 2014). For substantive

2 18 U.S.C. § 2246 defines “sexual act” as that term is used in § 2241 and other sections in Chapter 109A. The PSR shows that the acts Mr. Alberts engaged in with his younger relatives were “sexual act s” within the meaning of § 2246 , and Mr. Alberts does n ot argue otherwise.

Case: 16-11065 Date Filed: 06/13/2017 Page: 11 of 1612 reasonableness, we review a defendant’s sentence in light of the totality of the circumstances and the “purposes of sentencing stated in § 3553(a).” United States

v. Moran , 778 F.3d 942, 982 (11th Cir. 2015) (quotation omitted). The § 3553(a) factors include the nature and circumstances of the offense; the history and characteristics of the defendant; the applicable guideline range; and the need to reflect the seriousness of the offense, deter criminal condu ct, and protect the public from the defendant’s future crimes. See 18 U.S.C. § 3553(a). The weight assigned to any particular factor is within the discretion of the District Court, and we will reverse a sentence as substantively unreasonable only if “we are left with the definite and firm conviction” that the District Court “committed a clear error of judgment in weighing” the factors by arriving at a sentence “outside the range of reasonable sentences dictated by the facts of the case.” United States v. Williams , 456 F.3d 1353, 1363 (11th Cir. 2006), abrogated on other grounds by Kimbrough v. United States , 552 U.S. 85, 128 S. Ct. 558 (2007).
A. PROCEDURAL REASONABLENESS Mr. Alberts says his sentence is procedurally unreasonable under Tapia v. United States , 564 U.S. 319, 131 S. Ct. 2382 (2011), because the District Court improperly considered his need for rehabili tation as a sentencing factor. H e points to the District Court’s statement at sentencing that “[y]our pattern of behavior over th e years demonstrates to me you do pose a danger to the community and you need

Case: 16-11065 Date Filed: 06/13/2017 Page: 12 of 1613 a period of time where you can receive the tr eatment that you should have.” Because Mr. Alberts did not make this objection below, we review for plain error only. See Vandergri ft , 754 F.3d at 1307. Thus, we will not reverse Mr. Alberts’s sentence as procedurally unreasonable unless he shows (1) the District Court erred; (2) th e error was plain; (3) the error affected his substantial rights; and (4) the error “seriously affected the fairness, integrity, or public reputation of judicial proceedings.” See id. (quotation omitted and alteration adopted).
In Tapia , the Supreme Court held the Sentencing Reform Act of 1984 prohibits federal courts from “imposing or lengthening a pris on term in order to promote a criminal defendant’s rehabilitation.” 564 U.S. at 321, 131 S. Ct. at 2385. This circuit has expressly declined to limit Tapia to “ situations where the district court either ( 1) specifically ta ilors the length of a defendant’ s sentence to permit completion of a rehabilitation program or ( 2) mak es rehabilitation the ‘dominant’ factor in the sentencing court’ s calculus. ” Vandergrift , 75 4 F.3d at 1310. Instead, this C ourt applied Tapia to hold that a district court errs wheneve r it

“ considers rehabilitation when imposing or lengthening a sentence of imprisonment .” 3 Id.

3 This limitation applies only to sentences of imprisonment. S entencing courts are permitted to consider a defendant’s rehabilitative needs when imposing sentences of probation or supervised release. Tapia , 564 U.S. at 330, 131 S. Ct. at 2390. For example , a court can require a defendant to undergo psychological treatment as a condition of probation. Id.

Case: 16-11065 Date Filed: 06/13/2017 Page: 13 of 1614 Here, in the course of discussing the factors it weighed in arriving at Mr. Alberts’s prison sentence, the District Court told him that he “need[ed ] a period of time where [he] can receive the treatment that [he] should have.” Thus, the District Court erred by considering Mr. Alberts’s need for rehabilitation as a factor
in determining his prison sentence

. Further, because our binding precedent cle arly precludes consideration of rehabilitation when crafting a prison sentence , see id. , that error was plain. See United States v. Aguillard , 217 F.3d 1319, 1321 (11th Cir. 2000) (per curiam) (holding that an error cannot be “plain” unless it is “clear

u nder current law” (quotation omitted)). However, the District Court’s error did not affect Mr. Alberts’s substantial rights. In order to affect a defendant’s substantial rights, an error “must have affected the outcome of the district court proceedings.” United States v. Olano , 507 U.S. 725, 7 34, 113 S. Ct. 1770, 1778 (1993 ). A defendant cannot show that his substantial rights were impacted if his “rehabilitative needs clearly constituted only a minor fragment of the court’s reasoning.” Vandergrift , 754 F.3d at 1312 (quotation omitted) . Here , the sentencing transcript shows that rehabilitation was merely an ancillary concern. In identifying the aggravating sentencing factors, the District Court’s “primary considerations” were the seriousness of Mr. Alberts’s offense, the need for punishment and specific deterrence, and the need to protect society from his dangerous actions. See id. Indeed, immediately before

Case: 16-11065 Date Filed: 06/13/2017 Page: 14 of 1615 announcing the sentence, the District Court re

- emphasized all of these factors , but did not mention rehabilitation

. Because Mr. Alber ts has failed to show his sentence would have been different had the District Court not considered rehabilitation, we affirm his sentence as procedurally reasonable.
B. SUBSTANTIVE REASONABLENESS Mr. Alberts also argues his 120

- month sentence is substantively unreasonable because the District Court should not have applied the “pattern of activity” enhancement under USSG § 2G2.2(b)(5). He says his guidelines range was erroneously inflated from 78

– 9 7 months to 135

– 168 months because of th e enhancement, and that in light of his correct guidelines range (78

– 97 months), the District Court should not have given him a 120

- month sentence.
As set out a bove, the District Court properly applied the § 2G2.2( b)(5) enhancement in this case. Th at means Mr. Alberts’s guideline range was properly calculated to be 135 to 168 months, and his 120

- month sentence is not substantively unreasonable. During Mr. Albert s ’s sentencing, the District Court considered the § 3 553(a) factor s and explicitly identified some of them, such as the nature of his offense, his history and past conduct , the applicable guideline range, the need for punishment and deterrence, and the need to prot ect the public. The court weighed the mitig ating factors against the aggravating factors and decided that a downward departure from the guideline range would be appropriate, in part

Case: 16-11065 Date Filed: 06/13/2017 Page: 15 of 1616 because it thought the “pattern of activity” enhancement “s lightly overstates” his crime. We will not reverse a sent ence as substantively unreasonable unless the District Court’s weighing constituted a “clear error of judgment” that resulted in a sentence “outside the range of reasonable sentences.” Williams , 456 F.3d at 1363. On this record, Mr. Alberts’s below

- guidelines sentence was not outside the range of reasonableness.
IV. CONCLUSION
W e affirm Mr. Alberts’s 120

- month sentence. AFFIRMED. Case: 16-11065 Date Filed: 06/13/2017 Page: 16 of 16