FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAY 28, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-13815

Non-Argument Calendar

________________________

D. C. Docket No. 09-14015-CR-JEM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

STEPHEN GUY THOMAS, JR.,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(May 28, 2010)

Before TJOFLAT, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:

Stephen Guy Thomas, Jr. appeals his 210-month sentence for receipt and

possession of child pornography, in violation of 18 U.S.C. § 2252(a)(2). On

appeal, Thomas argues that his sentence is unreasonable because the district court
applied the Sentencing Guidelines as mandatory, rather than merely advisory, and

because several factors in this case warranted a downward variance from the

guideline range. After thorough review, we affirm.

We review the ultimate sentence a district court imposes for

“reasonableness,” which “merely asks whether the trial court abused its

discretion.” United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir. 2008) (quoting

Rita v. United States, 551 U.S. 338, 351 (2007)).

In reviewing sentences for reasonableness, we perform two steps. Pugh, 515

F.3d at 1190. First, we must “‘ensure that the district court committed no

significant procedural error, such as failing to calculate (or improperly calculating)

the Guidelines range, treating the Guidelines as mandatory, failing to consider the

§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing

to adequately explain the chosen sentence -- including an explanation for any

deviation from the Guidelines range.’” Id. (quoting Gall v. United States, 552 U.S.

38, 51 (2007)). The district court need not state on the record that it explicitly

1

The § 3553(a) factors include: (1) the nature and circumstances of the offense and the 1

history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the

seriousness of the offense, to promote respect for the law, and to provide just punishment for the

offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to protect

the public; (5) the need to provide the defendant with educational or vocational training or medical

care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the pertinent

policy statements of the Sentencing Commission; (9) the need to avoid unwanted sentencing

disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a). 

2
considered each factor and need not discuss each factor. United States v. Talley,

431 F.3d 784, 786 (11th Cir. 2005). Rather, “an acknowledgment by the district

court that it has considered the defendant’s arguments and the factors in section

3553(a) is sufficient” under United States v. Booker, 543 U.S. 220 (2005). Id.

When the district court imposes a within-guidelines sentence, it need only “set

forth enough to satisfy the appellate court that [it] has considered the parties’

arguments and has a reasoned basis for exercising [its] own legal decisionmaking

authority.” Rita, 551 U.S. at 356.

If we conclude that the district court did not procedurally err, we must

consider the “‘substantive reasonableness of the sentence imposed under an

abuse-of-discretion standard,’” based on the “‘totality of the circumstances.’”

Pugh, 515 F.3d at 1190 (quoting Gall, 552 U.S. at 51). A sentence may be

substantively unreasonable if it does not achieve the purposes of sentencing stated

in 18 U.S.C. § 3553(a). Id. at 1191. A sentence within the guidelines range is

ordinarily expected to be reasonable. Talley, 431 F.3d at 788.

The weight accorded to the § 3553(a) factors is left to the district court’s

discretion, and we will not substitute our judgment in weighing the relevant

factors. United States v. Amedeo, 487 F.3d 823, 832 (11th Cir. 2007). The fact

that we might reasonably conclude that a different sentence is appropriate is not

3
sufficient to warrant reversal. United States v. Williams, 526 F.3d 1312, 1322

(11th Cir. 2008). “[T]he party who challenges the sentence bears the burden of

establishing that the sentence is unreasonable in the light of both the record and the

factors in section 3553(a).” United States v. Thomas, 446 F.3d 1348, 1351 (11th

Cir. 2006) (quotation and brackets omitted).

Thomas has failed to show that his 210-month sentence is procedurally or

substantively unreasonable. At the sentencing hearing, the district court stated that

it had considered the statutory factors, as well as the advisory guidelines, in

determining Thomas’s sentence. The district court also stated that “I legally could

give him virtually nothing, but I think that would not be meeting my responsibility

if I were to do that,” acknowledging that the Sentencing Guidelines are not

mandatory, but rather that the sentencing judge retains discretion to depart from the

guidelines.

Moreover, although the district court here did not expressly state if or how

many statutory factors were considered in his decision to sentence Thomas, the

court did, however, acknowledge throughout the sentencing hearing that it had

received and considered all evidence submitted by the defendant. The court also

stated on the record that the mitigating evidence submitted by Thomas would result

in a sentence towards the low end of the guideline range. Since Thomas presents

4
no additional arguments to explain how the low-end guideline sentence itself was

unreasonable nor how the sentence does not meet our ordinary expectation of

reasonableness, Thomas has not met his burden of establishing unreasonableness.

Talley, 431 F.3d at 786, 788.

AFFIRMED.

5