[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 17

- 12682 Non

- Argument Calendar

________________________ D.C. Docket No. 1:15

- cr - 00395

- WSD

- RGV

- 1

UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus LEONARD NATHANIEL PERAGINE, JR., Defendant

- Appellant.

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

________________________ (May 8, 2018) Before MARCUS , ROSENBAUM , and NEWSOM , Circuit Judges. PER CURIAM:

Case: 17-12682 Date Filed: 05/08/2018 Page: 1 of 62 Leonard Peragine appeals his 340

- month sentence for enticement of a child for sexual activity and possession and distributio n of child pornography under 18 U.S.C. §§ 2422(b), 2252(a)(2), 2252(b)(1), 2252(a)(4)B), and 2252(b)(2). On appeal, he argues that the district court committed both procedural and substantive

errors . He asserts that the district court’s sentence was proc edurally unreasonable because it applied the sentencing enhancements found in U.S.S.G. § 2G2.2 without regard to a report from the Sentencing Commission in 2013 that those enhancements are “ outdated, ” and because it should have instead applied the Guidelin es calculation for enticement of a child for sexual activity under § 2G1.3. And h e contends that the district court’s sentence was substantively unreasonable because the sentence it imposed was greater than nece ssary to account for the factors listed in 18 U.S.C. § 3553(a). We review the reasonableness of a sentence for abuse of discretion. Gall v. United States , 552 U.S. 38, 41 (2007). The party who challenges a sentence bears the burden to show that the sentence is unreasonable in light of the record and the § 3553(a) factors. United States v. Tome , 611 F.3d 1371, 1378 (11th Cir. 2010).
I We review for procedural reasonableness to ensure that the district court committed no significant procedural error, such as (1) improperly calculating the defendant’s sentencing range , (2) treating the Guidelines as mandatory , (3) failing

Case: 17-12682 Date Filed: 05/08/2018 Page: 2 of 63 to consider the 18 U.S.C. § 35 53(a) factors , (4) selecting the sentenced based on clearly erroneous facts , or (5) failing to adequately explain the chosen sentence. Gall , 552 U.S. at 51

. Procedural errors are harmless when the district court would have imposed the same sentence regar dless of a particular Guidelines calculation, and when the ultimate sentence is reasonable. United States v. Keene , 470 F.3d 1347, 1349 (11th Cir. 2006). Here, the district court did not procedurally err. Peragine does not contend the district court in correctly calculated the Guidelines. Nor does he argue that the
court improperly treated the Guidelines as mandatory or committed a clear error of judgment. Instead, he asserts that sentencing him under § 2G2.2

— rather than § 2G1.3

— unfairly “warp[ed] the assessment of [his] offense conduct.” For support, Peragine points to a report issued by the U.S. Sentencing Commission in 2013 that critiqued the enhancements avail able under § 2G2.2 as outdated in light of modern technology. But this Court has squarely rejected similar arguments before, and has held on substantially similar facts that “the Commission’s 2013 report does not render the non

- production child pornography guidelines in § 2G2.2
i nvalid or illegitimate ”

— or, for that matter, “ alter[] our appella te duties in reviewing a § 2G2.2

- based sentence or the district court ’ s sentencing duties or discretion in any way.” United States v. Cubero , 754 F.3d 888, 900 (11th Cir. 2014). Peragine’s related contention that the district court was “ authorized to

Case: 17-12682 Date Filed: 05/08/2018 Page: 3 of 64 consider ” the 2013 Report misses the point . The sole question here is whether the distr ict court abuse d its discretion when it applie d the enhancements available under § 2G2.2. This Court’s precedent makes clear that it did not. N or does anything in thi s Court’s precedent support Peragine’s suggestion that, in the case of multiple counts which cannot be grouped together, a district court must determine which crime Congress intended to be the more serious and

use the Guidelines calculation applicable to that offense. In basing the Guidelines calculation on the group of offenses that yielded the higher offense level, the district court here was following the explicit instructions of U.S.S.G. § 3D1.4. Finally , even if Peragine were correct that the d istrict court committed a procedural error in applying the Guidelines , the error would be harmless because the court express ly stated that it would have imposed the same sentence regardless of the Guidelines calculation : I made all these guideline ruling s to the best of my ability. I believe that they are right. But in a case like this, at the end of the day, it’s ... ultimately deciding what’s fair and just and consistent with the criteria under the [§] 3553 factors. And having gone through what the gui delines would be if I was wrong on all this ... r egardless of what my rulings were and whether they were wrong in the guidelines, this is the appropriate sentence in the case. For all of these reasons, we reject Peragine’s argument that the district court

c ommit ted procedural error.

Case: 17-12682 Date Filed: 05/08/2018 Page: 4 of 65 II For a sentence to be substantively reasonable, t he district court must impose a sentence that is “sufficient, but not greater than necessary to comply with the purposes” listed in 18 U.S.C. § 3553(a), including the need to reflect the seriousness of the offense, promote respect for the law, provide just punishment for the offense, deter criminal conduct, and protect the public from the defendant’s future criminal conduct. See 18 U.S.C. § 3553(a)(2). The court must also consider the nature and circumstances of the offense and the history and characteris tics of the defendant. Id. § 3553(a)(1). Although we do not formally presume that a sentence falling within the
G uideline range is reasonable, we ordinarily “ expect ” such a sentence to be reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). The weight given to any specific § 3553(a) factor is committed to the sound discretion of the district court. United States v. Clay , 483 F.3d 739, 743 (11th Cir. 2007). A court can abuse its discretion when it (1) fails to consider relevant fact ors that were due significant weight, (2) gives an improper or irrelevant factor significant weight, or (3) commits a clear error of judgment by balancing the proper factors unreasonably. United States v. Irey , 612 F.3d 1160, 1189 (11th Cir. 2010) ( en ban c )

. Moreover, a district court’s unjustified reliance on any one § 3553(a) factor

Case: 17-12682 Date Filed: 05/08/2018 Page: 5 of 66 may be indicative of an unreasonable sentence. United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008). Here, t he district court’s sentence is not substantively un rea sonable. The
court discussed the § 3553(a) factors at sentencing and gave detailed justifications for its sentence , which focused on the need to reflect the severity of the crime as well as the need to ensure that Peragine would not harm children in the future . The court acknowledged that Peragine was a victim himself when he was a child, but reasonably balanced against this mitigation evidence the need for a sentence that properly reflected the seriousness of Peragine’s crimes as well as the nec essity to protect other victims. Moreover, under our precedent, it is also significant that the sentence that the district court imposed was not just within the applicable Guidelines range of
360 months

- to

- life , see Hunt , 52 6 F.3d at 746, but below bot h the Guidelines range and the statutory maximum , which was life imprisonment , see United States v. Holt , 777 F.3d 1234, 1269 (11th Cir. 2015)

. AFFIRMED. Case: 17-12682 Date Filed: 05/08/2018 Page: 6 of 6