FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAY 11, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 06-13618

Non-Argument Calendar

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D. C. Docket No. 05-00278-CR-JOF-1

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

STUART MANLEY, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(May 11, 2007)

Before ANDERSON, BARKETT and HULL, Circuit Judges.

PER CURIAM:

Stuart Manley appeals his 360-month sentence imposed after he pled guilty

to child pornography charges. On appeal, Manley argues that the district court
Although Manley reported to the UCA that his son was 12 years old, it was later 1

determined that Manley’s son was born on August 10, 1993, and therefore, was only 11 years

old at the time of the offense in May 2005.

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(1) erred in calculating his advisory guidelines range; and (2) imposed an

unreasonable sentence. After review, we affirm. 

I. BACKGROUND

On May 6, 2005, Defendant Manley contacted an undercover FBI Cyber

Crime/Innocent Images Task Force Agent (“UCA”) in an America Online chat

room. The UCA was posing as a 33-year-old female with a 12-year-old daughter. 

Through a series of online chats, Manley expressed his desire to engage in sexual

activity with both the UCA and her daughter and advised that the UCA also could

have sex with Manley’s 12-year-old son. Manley sent the UCA multiple emails 1

containing images of child pornography, including some images of Manley’s son

with his penis exposed.

Manley, who resided in Texas, arranged to meet the UCA and her daughter

on May 20, 2005, at a restaurant near Atlanta, Georgia. Manley was arrested by

FBI Agents at the restaurant without incident. A subsequent search of Manley’s

hotel room resulted in the seizure of several items, including a laptop computer,

two “thumb drives,” and several items associated with sexual activity. It was later

determined that Manley’s laptop computer and one of the thumb drives contained a
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total of 401 images of child pornography, including some images of Manley’s son.

A federal grand jury returned a three-count indictment, charging Manley

with (1) using a means of interstate commerce to entice a minor to engage in

sexual activity, in violation of 18 U.S.C. § 2422(b); (2) transporting child

pornography in interstate commerce, in violation of 18 U.S.C. § 2252A(a)(1); and

(3) distributing child pornography in interstate commerce, in violation of 18 U.S.C.

§ 2252A(a)(2)(A). Manley pled guilty without a plea agreement. 

The presentence investigation report (“PSI”) recommended a base offense

level of 32, pursuant to U.S.S.G. § 2G2.1(a). The PSI also recommended the

following enhancements to Manley’s base offense level: (1) 4 levels, pursuant to

§ 2G2.1(b)(1)(A), because the offense involved a minor who had not attained the

age of twelve years; (2) 2 levels, pursuant to § 2G2.1(b)(2)(A), because the offense

involved the commission of a sexual act or sexual contact; (3) 2 levels, pursuant to

§ 2G2.1(b)(3), because the offense involved distribution; (4) 4 levels, pursuant to

§ 2G2.1(b)(4), because the offense involved material that portrays sadistic or

masochistic conduct or other depictions of violence; (5) 2 levels, pursuant to

§ 2G2.1(b)(5), because Manley was the parent of a minor involved in the offense;

and (6) 2 levels, pursuant to § 2G2.1(b)(6)(B), because Manley used a computer to

persuade, induce, entice, or coerce a minor to engage in sexually explicit conduct. 
Because Manley’s total offense level was more than 43, it was treated as an offense level

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of 43 for purposes of determining his advisory guidelines range. See U.S.S.G. ch. 5, pt. A, cmt.

n.2. 

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After application of these various specific offense characteristics, Manley’s

adjusted offense level was 48. The PSI then recommended that Manley’s offense

level be (1) reduced by 3 levels, pursuant to U.S.S.G. § 3E1.1, for acceptance of

responsibility; and (2) enhanced by 5 levels, pursuant to U.S.S.G. § 4B1.5(b),

because Manley was considered a repeat and dangerous sex offender against

minors under the Sentencing Guidelines. Accordingly, Manley’s total offense

level was 50. 

The PSI also concluded that Manley had a total of 11 criminal history points,

including 2 points for committing the instant offense while Manley was on parole,

resulting in a criminal history category of V. With a total offense level of 50 and a

criminal history category of V, Manley’s advisory guidelines range was life

imprisonment. However, the combined statutory maximum sentence for Manley’s 2

three counts of conviction was 70 years’ imprisonment; thus Manley’s advisory

guidelines sentence also was 70 years, or 840 months. See U.S.S.G. § 5G1.1(a).

At sentencing, Manley raised several objections to the PSI. In relevant part,

Manley objected to (1) the 4-level enhancement that was based on his offense

involving images that portray sadistic or masochistic conduct; and (2) the 2-point
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increase to his criminal history score for committing the instant offense while on

parole. The district court overruled these objections. In accordance with the PSI,

the district court determined that Manley had a total offense level of 50, a criminal

history category of V, and a maximum punishment of 70 years’ or 840 months’

imprisonment. 

Manley then raised the following matters for the district court’s

consideration in determining an appropriate sentence: (1) the conditions of

Manley’s pre-trial confinement, because he was kept in a United States

Penitentiary as opposed to a local or regional jail, and therefore, subjected to

harsher conditions than most pre-trial defendants; (2) the fact that Manley was 64

years old and that prison will be hard and have a “more significant impact” on him

because of his age; and (3) that Manley should be sent to a facility where he can

get treatment instead of being placed in a traditional incarceration setting. 

In response, the government argued that Manley’s statement of apology was

“disingenuous,” and that the statutory maximum sentence of 70 years’

imprisonment was appropriate given the seriousness of the offense, the need for

deterrence, and the need to protect society from further crimes. 

In deciding what punishment to impose, the district court commented that

Manley had a predisposition to certain urges that could not be healed adequately by
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mental health treatment and, given his age, did not appear to diminish with the

passage of time. The district court stated, therefore, that “incapacitation drives the

sentence,” and that “Manley can’t be allowed out under conditions that he might

present a threat to children.” The district court noted, however, that “[a]s a

practical matter, any substantial sentence will amount to a life sentence,” and that

imposing an 840-month sentence would look like “grandstanding” and could cast a

bad light on the judicial system. Finally, the district court noted that the victims of

Manley’s abuse were seeking retribution, and that Manley’s sentence could

provide a general deterrence effect. Accordingly, the district court sentenced

Manley to 360 months’ imprisonment on Count One and 240 months’

imprisonment on Counts Two and Three, all to run concurrently, as well as 10

years’ supervised release. 

Manley now appeals his sentence.

II. DISCUSSION

On appeal, Manley argues that the district court erred by (1) applying a

4-level enhancement to his offense level based on its finding that his offense

involved material that portrays sadistic or masochistic conduct or other depictions

of violence; (2) adding 2 points to his criminal history score for committing the

instant offense while on parole; and (3) imposing an unreasonable sentence.
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We need not address Manley’s first two arguments because, even assuming

arguendo that the district court erred in the two calculations in issue, any such error

was harmless. Even without the 4-level enhancement for material that portrays

sadistic or masochistic conduct and the 2 criminal history points, Manley still

would have had a total offense level of 46 and a criminal history category of IV,

which would have resulted in the same advisory guidelines sentence – life

imprisonment, reduced to 840 months’ imprisonment on account of the applicable

statutory maximum. Therefore, the district court’s guidelines calculations as to

these two issues, even if erroneous, did not affect Manley’s substantial rights and

would not require a reversal. See Fed. R. Crim. P. 52(a). 

As for Manley’s final argument, after United States v. Booker, 543 U.S. 220,

125 S. Ct. 738 (2005), a district court, in determining a reasonable sentence, must

consider the correctly calculated advisory guidelines range and the 18 U.S.C.

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

Although the district court must consider the § 3553(a) factors, “nothing 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.” United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005). Instead,

indications in the record that the district court considered facts and circumstances
We review the defendant’s ultimate sentence for reasonableness in light of the § 3553(a)

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factors. United States v. Williams, 435 F.3d 1350, 1353 (11th Cir. 2006). This “[r]eview for

reasonableness is deferential,” and the party challenging 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).” Talley, 431 F.3d at 788.

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falling within § 3553(a)’s factors will suffice. Talley, 431 F.3d at 786; Scott, 426

F.3d at 1329-30.

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

sentence is unreasonable. The district court correctly determined that Manley’s 3

advisory guidelines sentence was 840 months’ imprisonment, but nevertheless

sentenced him to 360 months’ imprisonment, a substantial amount below the

guidelines sentence. Furthermore, although the district court did not, and was not

required to, discuss each § 3553(a) factor, the record clearly indicates that the

district court considered several facts and circumstances falling within § 3553(a)’s

factors, including (1) Manley’s age and the fact that his deviant urges have not

diminished with the passage of time, 18 U.S.C. § 3553(a)(1); (2) the need for the

sentence to protect the public from further crimes through the incapacitation of

Manley, id. § 3553(a)(2)(C); (3) the need for the sentence to provide just

punishment for the offense, including providing retribution for Manley’s victims,

id. § 3553(a)(2)(A); and (4) the need for the sentence to provide adequate

deterrence, id. § 3553(a)(2)(B). Moreover, by sentencing Manley below the
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recommended guidelines sentence, the district court not only took into account the

Sentencing Guidelines, id. § 3553(a)(4), but also the need for the sentence to

promote respect for the law, id. § 3553(a)(2)(A). Under the facts and

circumstances of this case, Manley has failed to show that his 360-month sentence

is unreasonable.

AFFIRMED.