[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 20

- 10573 Non

- Argument Calendar

________________________ D.C. Docket No. 9:19

- cr - 80160

- RS

- 1

UNITED STATES OF AMERICA, Plaintiff

- Appellee,

versus GARY ROGER KOLLIGIAN, Defendant

- Appellant.

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

________________________ (September 30, 2020) Before NEWSOM , LAGOA and MARCUS , Circuit Judges.
PER CURIAM:

Case: 20-10573 Date Filed: 09/30/2020 Page: 1 of 52 Gary Kolligian appeals his 97

- mon th sentence, arguing that it was substantively unreasonable because the district court gave excessive consideration to § 2G2.2 of the United States Sentencing Guidelines at the expense of the other 18 U.S.C. § 3553(a) sentencing factors. He also attacks the validity of § 2G2.2 on policy grounds, claiming that it is unduly harsh. After thorough review, we affirm. We review the sentence a district court imposes for “reasonableness,” which “merely asks whether the trial court abused its discretion.” Unite d States v. Pugh , 515 F.3d 1179, 1189 (11th Cir. 2008) (quoting Rita v. United States , 551 U.S. 338, 351 (2007)). In reviewing the “‘substantive reasonableness of [a] sentence imposed under an abuse

- of

- discretion standard,’” we consider the “‘totality of the circumstances.’” Id. at 1190 (quoting Gall v. United States , 552 U.S. 38, 51 (2007)). The district court must impose a sentence “sufficient, but not greater than necessary to comply with the purposes” listed in 18 U.S.C. § 3553(a). 1 The court must consider all of the § 3553(a) factors, but it may give greater weight to some factors over others

-- a decision which is within its sound discretion. United States v. Rosales

- Bruno , 789 F.3d 1249, 1254 (11th Cir. 2015).

1 The § 3553(a) factors include: (1) the nature and circumstances of the offense and the 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 imp osed 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 pertin ent 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).

Case: 20-10573 Date Filed: 09/30/2020 Page: 2 of 53 A sentence may be substantiv ely unreasonable when a court unjustifiably relies on any single § 3553(a) factor, fails to consider pertinent § 3553(a) factors, bases the sentence on impermissible factors, or selects the sentence arbitrarily. Pugh , 515 F.3d at 1191

- 92. A sentence that suffers from one of these symptoms is
not per se unreasonable; rat her, we must examine the totality of the circumstances to determine the sentence’s reasonableness. Id . at 1192. “[W]e will not second guess the weight (or lack thereof) that the [court] a ccorded to a given [§ 3553(a)] factor . . . as long as the sentence ultimately imposed is reasonable in light of all the circumstances presented.” United States v. Snipes , 611 F.3d 855, 872 (11th Cir. 2010) (quotation, alteration and emphasis omitted). W e will 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 by arriving at a sentence that is outside the range of reasonable sentences d ictated by the facts of the case. Pugh , 515 F.3d at 1191

. T he party challenging the sentence bears the burden of demonstrating that the sentence is unreasonable in light of the record, the factors listed in § 3553(a), and the substantial deference afforded sentencing courts. Rosales

- Bruno , 789 F.3d at 1256. We o rdinarily expect that a sentence within the guideline range is reasonable. United States v. Whyte , 928 F.3d 1317, 1338 (11th Cir. 2019), cert. denied , 140 S. Ct. 875 (2020). A sentence well below the statutory maximum also indicates

Case: 20-10573 Date Filed: 09/30/2020 Page: 3 of 54 reasonableness. Unit ed States v. Nagel , 835 F.3d 1371, 1377 (11th Cir. 2016). The district court is not required to discuss each of the § 3553(a) factors, and an acknowledgement that it has considered the § 3553(a) factors will suffice. United
States v. Turner , 474 F.3d 126 5, 1281 (11th Cir. 2007). Further, we ’ve noted that “a district court’s decision to apply the guidelines to a particular case does not necessarily require lengthy explanation.” United States v. Cubero , 754 F.3d 888, 901 (11th Cir. 2014) (quotations omitt ed). Section 2G2.2 of the sentencing guidelines provides various sentencing enhancements for a child pornography conviction under 18 U.S.C. § 2252(a)(4) and other related offenses. See U.S.S.G. § 2G2.2. In 2013, the United States Sentencing Commissio n issued a report criticizing § 2G2.2 as outdated based on modern technology; as fail ing “to account fully for some offenders ’ involvement in child pornography communities and sexually dangerous behavior” ; and as unduly lenient for some offenders and overly severe for others, leading to inconsistent application. Cubero , 754 F.3d at 898

– 99 (quotations omitted) . Addressing a chal lenge to a sentence based on § 2G2.2, we held in Cubero that, notwithstanding the Sentencing Commission’s 2013 report, the use of § 2G2.2 as an advisory guideline did not render a sentence procedurally or substantively unreasonable. Id . at 900.
T he distr ict court did not abuse its discretion in sentencing Kolligian to serve
97

- months’ imprisonment. In Cubero , we squarely rejected the same arguments

Case: 20-10573 Date Filed: 09/30/2020 Page: 4 of 55 Kolligian brings now. See id

. He offers no argument that Cubero is distinguishable other than claiming th at the district court in his case failed to consider his policy arguments. But the district court s aid that it had an opportunity to review Kolligian’s motion for a downward variance

-- the bulk of which was concerned with his policy arguments against § 2 G2.2

-- before it sentenced him, and Kolligian reiterated these policy arguments during the hearing itself. In addition, as the record reflects, t he district court gave several reasons in support of its sentence, noting in particular its disbelief that Kolligian did not know he was committing a crime. It add ed afterward that it chose the low end of the guideline range in part because of the testimony of Kolligian’s exper t, who opined that Kolligian was a low

- risk offender

. It also mentioned that it had considered the § 3553(a) factors , which it was not required to discuss individually. See Kuhlman , 711 F.3d at 1326. In any event, a lengthy explanation is not necessar y for a sentence , like Kolligian’s, falling within the advisory guideline range. See Cubero , 754 F.3d at 901. Indeed , Kolligian’s 97

- month sentence was at the bottom end of his guideline range and well below the statutory maximum of 240 months ’ imprisonm ent

. On this record , Kolligian has not shown that hi s sentence is substantively un reasonable, and we affirm. AFFIRMED. Case: 20-10573 Date Filed: 09/30/2020 Page: 5 of 5