FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

DECEMBER 15, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-12254

Non-Argument Calendar

________________________

D. C. Docket No. 05-00275-CR-CB

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

LONNIE RAY HODNETT, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Southern District of Alabama

_________________________

(December 15, 2006)

Before ANDERSON, BARKETT and HULL, Circuit Judges.

PER CURIAM:

Lonnie Ray Hodnett appeals his 360-month sentence imposed after he pled
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guilty to child pornography charges. On appeal, Hodnett (1) argues that his

sentence is unreasonable; and (2) requests that we construe one of the conditions of

his supervised release to avoid a potential Fifth Amendment violation. After

review, we affirm.

I. BACKGROUND

In June 2005, Kenneth Ray Johnson was arrested in Missouri on state

charges based on his involvement in the production and distribution of child

pornography. Johnson later advised FBI agents that he had met Defendant Hodnett

in a sexual chat room that catered to preteens, and that he had traveled to Hodnett’s

residence on five or six occasions and would bring his minor children with him. 

On one occasion in October 2004, Johnson visited Defendant Hodnett and allowed

Hodnett to engage in oral sex with Johnson’s six-year-old daughter. Johnson also

admitted that he had sent Hodnett child pornography over the internet, and that

Hodnett had sent him some images of child pornography as well.

In October 2005, FBI agents executed a search warrant on Defendant

Hodnett’s residence. A forensic examination of Hodnett’s computer revealed more

than 600 images of child pornography, as defined in 18 U.S.C. § 2256(8)(A),

including images of prepubescent children engaged in sexual activity. Hodnett

told an FBI agent that he had thoughts and urges about having sex with kids, and
Hodnett’s base offense level of 22 was increased by: (a) 2 levels under U.S.S.G. 1

§ 2G2.2(b)(2) because his offense involved a minor who was not yet 12 years old; (b) 5 levels

under § 2G2.2(b)(3)(B) because his offense involved distribution in exchange for a thing of

value although not for pecuniary gain; (c) 4 levels under § 2G2.2(b)(4) because the material

included sadistic or masochistic conduct, or other depictions of violence; (d) 5 levels under

§ 2G2.2(b)(5) because he engaged in a pattern of activity involving sexual abuse or exploitation

of a minor; (e) 2 levels under § 2G2.2(b)(6) because his offense involved the use of a computer;

and (f) 5 levels under § 2G2.2(b)(7)(D) because his offense involved more than 600 images. 

Hodnett’s offense level was then reduced 3 levels under U.S.S.G. § 3E1.1 for acceptance of

responsibility, resulting in a total offense level of 42.

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that he seeks out child pornography on the internet. Hodnett admitted to engaging

in oral sex with Johnson’s daughter and told the FBI agent that he had a pair of her

panties in his dresser drawer. The child’s panties were located along with training

bras and other panties which Hodnett stated belonged to his girlfriend’s children. 

Hodnett also admitted that (1) in 1969, while serving in Vietnam, he kidnaped and

forcibly raped a six-year-old Vietnamese girl; and (2) in the 1970’s, he sexually

molested the young children of his first wife. 

Hodnett was charged with (1) receipt and distribution of child pornography,

in violation of 18 U.S.C. § 2252A(a)(2) and (b)(1) (“Count One”); and

(2) possession and attempted possession of child pornography, in violation of 18

U.S.C. §§ 2252A(a)(5)(B), 2, and 2256(8)(A) (“Count Two”). Hodnett pled guilty

to the charges without a plea agreement.

A presentence investigation report (“PSI”) recommended a total offense

level of 42 and a criminal history category of I, resulting in an advisory 1
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Guidelines range of 360 months to life imprisonment. However, because the

statutory maximum for Count One is 20 years, and the statutory maximum for

Count Two is 10 years, Hodnett’s maximum statutory sentence was 30 years or

360 months. See 18 U.S.C. § 2252A(b)(1)-(2). Therefore, the advisory Guidelines

range became the statutory maximum of 360 months. See U.S.S.G. § 5G1.2(d). 

Hodnett did not raise any objections to the PSI, and the district court adopted the

calculations.

At sentencing, Dr. Barry T. Hirsch, a forensic psychologist, testified on

behalf of Hodnett. Dr. Hirsch testified that Hodnett had an extremely chaotic

home life with a brutal, hypersexual father who battered Hodnett, his half sister,

and his mother. Hodnett witnessed his parents engage in sexual activity, and he

also witnessed his father sexually molest his half sister from the age of about six or

seven on. Hodnett also had engaged in sexual intercourse with his half sister when

they were young, and his sexual fantasies continued to center around prepubescent

girls even as he grew older. Dr. Hirsch recommended that Hodnett be (1)

supervised for the remainder of his life; (2) prescribed antidepressants, not only

because he was clinically depressed, but because the medication would lower his

sex drive; (3) subjected to random drug tests to dissuade him from taking Viagra or

related medications; and (4) subjected to Global Positioning System monitoring. 
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Although Dr. Hirsch stated that Hodnett is “a hardcore, pedophilic, sadistically

oriented individual who is appropriate for removal from society for a period of

time to protect society,” he nevertheless opined that Hodnett was “highly

treatable.” Accordingly, Dr. Hirsch maintained that while keeping Hodnett in

prison for thirty years would prevent him from accessing children during that time,

(1) only mental health treatment combined with medication and monitoring would

rehabilitate him; (2) he would be less likely to accept treatment at the end of thirty

years in prison than he was now; and (3) if he did not receive treatment, he most

likely would emerge from prison even more dangerous because he could learn

from other pedophiles while in prison. 

At sentencing, Hodnett’s step-daughters Renee Hollis and Vicky Lynn

Coker testified on behalf of the government. Both women testified that Hodnett

molested them in the 1970’s when they were children, while Hodnett was married

to their mother. Coker also testified that Hodnett had sexual intercourse with her

as part of the molestation. 

At sentencing, the government argued that Hodnett should be sentenced to

the statutory maximum of 30 years’ imprisonment, commenting that Hodnett was

“a poster child for deviant sadomasochistic behavior with children,” and that “at

least for 30 years we can tell this community that it will be safe from him.” 
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Hodnett admitted that the safety of the community was an important consideration,

but argued that his sentence should focus on treatment and rehabilitation, rather

than merely the length of the sentence. Hodnett left it up to the district court to

determine the appropriate length of his sentence, but argued that a twelve-year

sentence, served in a mental health institution where he could get treatment, would

be appropriate. 

The district court sentenced Hodnett to the statutory maximum of 240

months as to Count One and 120 months as to Count Two, to be served

consecutively for a total of 360 months’ imprisonment. Although the district court

stated that it felt compassion for the circumstances surrounding Hodnett’s early

life, the court determined that it must sentence him to the longest possible term in

order to protect society and to punish him. Specifically, the court stated, “Mr.

Hodnett, I wish this pen were a magic wand, I would wave it and I would set you

back . . . and have you come up in some other family and some other

circumstance.” However, the court continued,

as a judge, my obligation is to protect—to do a number of things, to

punish, to deter and to protect the public. Dr. Hirsch is a brilliant

man. And your lawyer has done an excellent job in retaining him.

And what he had to say was interesting, but it just didn’t

measure up to what I needed to hear to tell me that there was enough

of a guarantee or assurance that if I sentence you to 12-years or

15-years or 20, that the treatment that you might or might not
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participate in at Buckner for the sexual offender program, you might

be a terrible—you might not even go to it.

. . . . And there are too many risks, Mr. Hodnett. Society demands

more.

Accordingly, the district court sentenced Hodnett to a total of 360 months’

imprisonment, stating that “that is the only sentence . . . that serves the sentencing

objectives of punishment, deterrence and incapacitation.” 

The district court also sentenced Hodnett to a life term of supervised release. 

Among the conditions of supervised release, the district court ordered that Hodnett

“participate in the mental health sex offender treatment, evaluation, testing,

clinical, polygraph and other assessment instruments as directed by the court

through the probation office.” Hodnett objected to this condition of supervised

release, and in particular, the portion requiring him to submit to polygraph

examinations, as a potential violation of his Fifth and Sixth Amendment rights. 

Hodnett now appeals.

II. DISCUSSION

A. Reasonableness of Sentence

On appeal, Hodnett argues that his 360-month sentence is unreasonable,

claiming that the sentence is longer than necessary to achieve the purposes of

sentencing. 
“The factors in § 3553(a) include: (1) the nature and circumstances of the offense; 2

(2) the history and characteristics of the defendant; (3) the need for the sentence imposed to

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

punishment; (4) the need to protect the public; and (5) the Guidelines range.” United States v.

Scott, 426 F.3d 1324, 1328-29 (11th Cir. 2005) (citing 18 U.S.C. § 3553(a)). “[N]othing in

Booker or elsewhere requires the district court to state on the record that it has explicitly

considered each of the § 3553(a) factors or to discuss each of the § 3553(a) factors.” Id. at 1329. 

Instead, indications in the record that the district court considered facts and circumstances falling

within § 3553(a)’s factors will suffice. Id. at 1329-30; Talley, 431 F.3d at 786.

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After United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), a district

court, in determining a reasonable sentence, must correctly calculate the sentencing

range under the Guidelines and then consider the factors set forth in 18 U.S.C.

§ 3553(a). See United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005). 

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We review a defendant’s ultimate sentence for reasonableness in light of the

§ 3553(a) factors. See United States v. Winingear, 422 F.3d 1241, 1246 (11th Cir.

2005). This “[r]eview for reasonableness is deferential. . . . and when the district

court imposes a sentence within the advisory Guidelines range, we ordinarily will

expect that choice to be a reasonable one.” Talley, 431 F.3d at 788. “[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).” 

Id. The fact that Hodnett received the statutory maximum term of imprisonment

for his convictions does not necessarily make the sentence unreasonable. See

United States v. Johnson, 451 F.3d 1239, 1244 (11th Cir. 2006) (upholding as
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reasonable a statutory maximum sentence of 140 years’ imprisonment for

producing and distributing child pornography).

After review, we conclude that Hodnett has not shown that his 360-month

sentence is unreasonable. The district court correctly calculated the advisory

Guidelines range and indicated that it had considered several of the § 3553(a)

factors, including (1) the history and characteristics of the defendant, 18 U.S.C.

§ 3553(a)(1); (2) the need for the sentence to provide just punishment for the

offense, afford adequate deterrence, and protect the public from further crimes of

the defendant, id. § 3553(a)(2)(A)-(C); and (3) the advisory Guidelines term of

imprisonment, id. § 3553(a)(4). The district court also considered the need to

provide Hodnett with appropriate mental health treatment, id. § 3553(a)(2)(D), but

ultimately concluded that the risk of Hodnett not being successfully rehabilitated

was too great to justify a lower sentence when compared with the need to protect

the public. Accordingly, we cannot say that the district court’s sentence is

unreasonable.

B. Conditions of Supervised Release

Hodnett argues that the condition of his supervised release requiring him to

submit to polygraph testing may violate his Fifth Amendment privilege against

self-incrimination. Therefore, Hodnett requests that we construe this condition of
Although we can decide whether requiring polygraph testing as a condition of 3

supervised release generally violates the Fifth Amendment, this Court already has rejected this

argument and we do not discuss it further. See Taylor, 338 F.3d at 1284.

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supervised release to provide that his supervised release cannot be revoked if he

refuses to submit to the polygraph testing based on a valid assertion of his Fifth

Amendment rights. 

This Court has held that where a defendant challenges a condition of

supervised release requiring polygraph testing on Fifth Amendment grounds when

no incriminating questions have been asked and the privilege has not been invoked,

an individualized Fifth Amendment claim is not ripe for review. See United States

v. Taylor, 338 F.3d 1280, 1284 (11th Cir. 2003); United States v. Zinn, 321 F.3d

1084, 1091-92 (11th Cir. 2003). 

In this case, Hodnett’s concerns about a potential Fifth Amendment violation

present only speculation about future contingent events, and therefore, his claim is

not ripe for review. Taylor, 338 F.3d at 1284. Hodnett’s term of supervised

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release has not started, he has not been asked any potentially incriminating

questions, and he has not invoked the Fifth Amendment privilege against

self-incrimination. As such, we need not construe the condition of supervised

release to avoid any potential Fifth Amendment issues.
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III. CONCLUSION

Based on the foregoing reasons, we affirm Hodnett’s 360-month sentence

and term of supervised release.

AFFIRMED.