FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 3, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-14882

Non-Argument Calendar

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D. C. Docket No. 09-60077-CR-WJZ

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

STEVEN PORTNEY,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

_________________________

(June 3, 2010)

Before TJOFLAT, BIRCH and ANDERSON, Circuit Judges.

PER CURIAM:

Steven Portney was convicted on pleas of guilty of transporting child
pornography in interstate and foreign commerce, in violation of 18 U.S.C. §

2252(a)(1), Count 1, and of possession of such child pornography, also in violation

of § 2252(a)(4), Count 2, and was sentenced to concurrent prison sentences: 135

months on Count 1 and 120 months on Count 2. He now appeals his sentences,

arguing that they are procedurally and substantively unreasonable.

We review a sentence for procedural or substantive reasonableness,

employing an abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51,

128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). “[W]hen the district court imposes a

sentence within the advisory Guidelines range, we ordinarily will expect that

choice to be a reasonable one.” United States v. Talley, 431 F.3d 784, 788 (11th

Cir. 2005). The reasonableness of a sentence depends on the district court’s

application of the factors outlined in 18 U.S.C. § 3553(a). See id. at 786.

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 The relevant § 3553(a) factors include: 1

(1) the nature and circumstances of the offense and the history and

characteristics of the defendant;

(2) the need for the sentence imposed—

(A) to reflect the seriousness of the offense, to promote

respect for the law, and to provide just punishment for the

offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the

defendant; and

(D) to provide the defendant with needed . . . treatment;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range . . . ; and 

(6) the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of

similar conduct.

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Procedural errors at sentencing may include the district court’s failure to

calculate, or improper calculation of, the guideline range, treatment of the

guidelines as mandatory, failure to consider the factors in § 3553(a), selection of a

sentence based on clearly erroneous facts, or failure to adequately explain the

chosen sentence. Gall, 552 U.S. at 51, 128 S.Ct. at 597. The district court need

not discuss each § 3553(a) factor; an acknowledgment by the district court that it

considered the § 3553(a) factors, as well as the defendant’s arguments, is

sufficient. See Talley, 431 F.3d at 786. “The sentencing judge should set forth

enough [reasons] to satisfy the appellate court that he has considered the parties’

arguments and has a reasoned basis for exercising his own legal decisionmaking

authority.” Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 2468, 168

L.Ed.2d 203 (2007).

The review for substantive reasonableness involves examining the totality of

the circumstances. Gall, 552 U.S. at 51, 128 S.Ct. at 597. A sentence may be

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

defined in § 3553(a). We will vacate a sentence and remand for resentencing,

however, only when 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

18 U.S.C. § 3553(a).

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by arriving at a sentence that lies outside the range of reasonable sentences dictated

by the facts of the case.” Pugh, 515 F.3d at 1191. The weight given to any

§ 3553(a) factor is within the sound discretion of the district court, and we will not

substitute our judgment in weighing the relevant factors. United States v. Amedeo,

487 F.3d 823, 832 (11th Cir. 2007). As the U.S. Supreme Court explained, “[t]he

fact that the appellate court might reasonably have concluded that a different

sentence was appropriate is insufficient to justify reversal of the district court.”

Gall, 552 U.S. at 51, 128 S.Ct. at 597.

With respect to the procedural reasonableness of his sentences, Portney

contends that the Guidelines relating to U.S.S.G. § 2G2.2 should be given little

weight because they were developed based on Congressional mandate, not

empirical data. We have already rejected a similar argument challenging § 2G2.2.

See Pugh, 515 F.3d at 1201 n.15. Thus, Portney’s argument is foreclosed by our

precedent. See United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008)

(recognizing that “a prior panel’s holding is binding on all subsequent panels”).

With respect to the substantive reasonable of Portney’s sentences, the district

court sentenced Portney to the low-end of the Guidelines sentencing range after

considering the seriousness of the crimes, the need for deterrence, the other §

3553(a) factors, the facts and circumstances surrounding the offense, and Portney’s

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arguments in mitigation, including his history, character, and family support

network. That the district court chose to give more weight to the seriousness of the

crime and the need for deterrence than to Portney’s history, character, and family

support network was within the sound discretion of the district court which. See

Amedeo, 487 F.3d at 832.

The sentences in this case are, accordingly,

AFFIRMED.

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