FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

NOVEMBER 28, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-11744

Non-Argument Calendar

________________________

D. C. Docket No. 06-00085-CR-4-RH-WCS

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

OZGUR YILMAZEL, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Northern District of Florida

_________________________

(November 28, 2007)

Before TJOFLAT, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:

Ozgur Yilmazel appeals his 60-month sentence for traveling in interstate

commerce for the purpose of engaging in a sexual act with a minor, a violation of

18 U.S.C. § 2423(b). After chatting online with an undercover officer who was
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posing as a 14-year-old girl, Yilmazel was arrested when he arrived at the site of a

prearranged meeting with the victim. For the first time on appeal, Yilmazel argues

that the district court erred by increasing his offense level by two levels, pursuant

to U.S.S.G. § 2G1.3(b)(2)(B), for unduly influencing a minor. More specifically,

Yilmazel asserts that § 2G1.3(b)(2)(B) does not apply to a case in which the minor

is fictitious, and that even if it is applicable, the district court did not make

sufficient factual findings to apply it to his case. He also challenges the

reasonableness of his sentence. After careful review, we affirm.

The relevant facts are straightforward. On December 5, 2006, Yilmazel was

indicted on one count of traveling in interstate commerce for the purpose of

engaging in a sexual act with a person under 16 years of age, a violation of 18

U.S.C. § 2423(b). He pled guilty and proceeded to sentencing.

According to the undisputed facts of the presentence investigation report

(“PSI”), Yilmazel, a 31-year-old resident of Turkey who was in the United States

on a B-2 visa at the time of his arrest, began chatting online with an individual

identified as “cindygirl718,” who claimed to be a 14-year-old girl in Tallahassee,

Florida, but, in fact, was an undercover Florida Department of Law Enforcement

agent. The day after their first chat, Yilmazel sent “cindygirl718” a nude picture of

himself, in which his penis was erect and his face was visible. In subsequent
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online chats, he offered to take naked pictures of “cindygirl718.” During one

exchange, Yilmazel asked “cindygirl718” what she thought about sex. After she

responded that she was “kinda new at this” and asked whether it would hurt,

Yilmazel said: “If your partner is patient enough it won’t be so hard . . . [bec]ause

if he really turn [sic] you on, the muscles on [sic] your vagina won’t be tight

anymore . . . [a]nd you’ll be wet.” 

In a later chat, Yilmazel stated that he wanted to “make love” to

“cindygirl718,” and that she would not get pregnant because he would use

condoms, and she could quit at any time if it hurt. Yilmazel again discussed taking

naked pictures of her, but then stated “not naked I think . . . it is against the law I

think . . . cause u r young.” He then instructed “cindygirl718” not to wear any

underwear when they met and wrote that, if she got hungry, she could “eat” him.

Yilmazel then arranged a meeting with “cindygirl718” at a McDonald’s in

Tallahassee, indicating that he would bring a camera to take pictures of her. Upon

arriving at the restaurant at the planned meeting time, Yilmazel was arrested.

The PSI assigned Yilmazel a base offense level of 24, pursuant to U.S.S.G. §

2G1.3, and recommended a 2-level increase, pursuant to § 2G1.3(b)(2)(B), for

unduly influencing a minor to engage in prohibited sexual conduct, and a 2-level

increase, pursuant to § 2G1.3(b)(3), for using a computer to “entice, encourage,
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offer, or solicit a person to engage in prohibited sexual conduct with a minor.”

After applying § 2G2.1, pursuant to the cross-reference of § 2G1.3(c)(1), because

the offense involved causing, transporting, permitting, or offering or seeking by

notice or advertisement, a minor to engage in sexually explicit conduct for the

purpose of producing a visual depiction of such conduct, Yilmazel’s adjusted

offense level was 33. With a criminal history category I, according to the PSI,

Yilmazel’s Guidelines range was 135 to 168 months’ imprisonment. 

Prior to the sentencing hearing, Yilmazel filed a sentencing memorandum, in

which he argued that: (1) while a departure for aberrant behavior was not available

to him, the court should consider, under § 3553(a), that many people who knew

him were surprised by his conduct and considered it an aberration; (2) the

requirements of the cross-reference of § 2G1.3(c)(1) were not met because he only

sent nude pictures of himself and possessed a camera at the time of his arrest; (3)

the correct guideline range should be 46 to 57 months, based on a 2-level increase,

pursuant to § 2G1.3(b)(3), for using a computer, and a 3-level reduction, pursuant

to § 3E1.1, for acceptance of responsibility; and (4) a sentence of a year and a day,

followed by deportation, would be a sufficient sentence in light of the factors

enumerated in § 3553(a). 
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At the sentencing hearing, Yilmazel objected to application of §

2G1.3(b)(2)(B) for unduly influencing a minor to engage in prohibited sexual

conduct, arguing that, while the Guidelines commentary states that there is a

rebuttable presumption of undue influence if the defendant was more than ten years

older than the minor, the facts of the instant case involved only a “flurry of emails

going back and forth” with no undue influence, other than the agent’s willingness

“to say and do whatever he needed to.” 

The district court rejected Yilmazel’s argument concerning the §

2G1.3(b)(2)(B) enhancement for undue influence, finding that while there was not

actual undue influence, Yilmazel’s conduct would have constituted undue

influence if there had been a real victim instead of an agent posing as a minor.

After finding that the cross-reference of § 2G1.3(c)(1) was inapplicable, because

the government did not establish that Yilmazel intended to take sexually explicit

pictures of the “minor,” the district court stated that the adjusted offense level was

25 and yielded an advisory sentencing range of 57 to 71 months’ imprisonment. 

Before imposing sentence, the district court stated that it had read the letters

of support submitted by Yilmazel, but had not read the various certificates and

degrees awarded to Yilmazel because they were in Turkish. The court then heard

Yilmazel’s explanation of the certificates and degrees. Yilmazel also told the court
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that he had contacted a woman at the Turkish Embassy, who stated that Turkey

almost never agrees to transfer prisoners back to Turkey to complete their

sentences. Yilmazel requested that he be sentenced to time-served and be sent

back to Turkey to be with his family. The government responded that Congress

continues to increase the scope and severity of punishment for these types of

crimes and argued that Yilmazel should be sentenced like any other defendant in

the United States having the same personal and familial difficulties. Finally,

Yilmazel added that, unlike other defendants in the United States, he will not have

family support while incarcerated, as his family will be financially unable to travel

from Turkey to visit him. 

After hearing the parties’ arguments concerning an appropriate sentence, the

district court imposed a sentence of 60 months’ imprisonment, which was at the

lower end of the 57-to-71-month range Yilmazel faced. The district court

indicated that it had considered the Guidelines, and all of the factors set forth in §

3553(a), including Yilmazel’s good record, and the seriousness of the offense,

which, it stated, was accounted for in the Guidelines range. The district court

noted that while it was sympathetic to the hardship of not being able to have family

visits, the sentence should not be significantly different based simply on the facts
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that Yilmazel is not from the United States and will be deported. This appeal

followed.

This Court reviews a district court’s interpretation of the Guidelines de

novo, and its factual findings for clear error. United States v. Jordi, 418 F.3d 1212,

1214 (11th Cir.), cert. denied, 546 U.S. 1067 (2005). However, Yilmazel’s

challenge to the § 2G1.3(b)(2)(B) enhancement, based on the fictitious nature of

the “victim,” is raised for the first time on appeal, and thus, our review is for plain

error only. See United States v. Olano, 507 U.S. 725, 732-36 (1993) (internal

quotations and citations omitted). To prevail under the plain error standard, an

appellant bears the burden of demonstrating that: (1) the district court erred; (2) its

error was plain; and (3) the error implicated his substantial rights. We may then

correct the error, at our discretion, if the error has “seriously affected the fairness,

integrity or public reputation of judicial proceedings.” Id. 

Section 2G1.3(b)(2)(B) provides for a two-level increase if “a participant [of

the crime] otherwise unduly influenced a minor to engage in prohibited sexual

conduct.” U.S.S.G. § 2G1.3(b)(2)(B). In intervening caselaw, we recently held

that § 2G1.3(b)(2)(B) can apply where the minor is fictitious, as “the focus is on

the defendant’s intent, not whether the victim is real or fictitious.” See United

States v. Vance, 494 F.3d 985, 995-97 (11th Cir. 2007). Application note 3(B) to §
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2G1.3 further provides that, where a participant is at least ten years older than the

minor, there is a rebuttable presumption of undue influence. U.S.S.G.

§ 2G1.3(b)(2), note 3(B); see also United States v. Root, 296 F.3d 1222, 1234-35

(11th Cir. 2002) (holding that the district court may employ, pursuant to U.S.S.G.

§ 2A3.2, note 5, a rebuttable presumption of undue influence when there is a tenyear age difference). 

Yilmazel’s argument based on the fictitious nature of the victim is

foreclosed by Vance. He cannot establish error, plain or otherwise, on that basis.

Moreover, Yilmazel presented no evidence to rebut the presumption of undue

influence arising from the ten-year age difference between himself and the

“minor.” The presumption was amply supported by the evidence, which included

detailed descriptions in the exchanges between Yilmazel and the “minor,” in which

Yilmazel said, among other things, that sex would not “be so hard” because, if the

minor’s “partner was patient enough” her “vagina won’t be tight . . . and she’ll be

wet.” Cf. Root, 296 F.3d at 1236 (affirming district court’s finding that defendant

failed to rebut presumption of undue influence, where defendant displayed

increased knowledge to influence the “minor” by describing sexual activities in

detail and stating that sex would “feel good” and not cause her pain; used

persuasive powers, in part by stating that he would be “gentle” and “patient”; and
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used superior resources to influence the “minor” by using his office computer to

send instant messages and send pictures of himself to her, driving his car across

states to meet her, and telling her that she would not need to worry about bringing

money to their meeting). Put simply, the district court did not err in applying the

enhancement. 

We likewise are unpersuaded by Yilmazel’s argument that his sentence was

unreasonable. He says that the district court erred by not giving any “meaningful

consideration” to the fact that he would be serving his sentence in a foreign prison,

where his family would not be able to visit, and he would be deported after his

sentence, thereby depriving him of future work opportunities. He also claims the

district court overemphasized the mandatory minimums addressed in other internet

sex-crime cases involving different statutes. He says that he should have received

a below-Guidelines sentence. We disagree.

After United States v. Booker, 543 U.S. 220 (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). “[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 §
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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 falling within § 3553(a)’s factors will suffice. Id. at 1329-30;

Talley, 431 F.3d at 786. “The weight to be accorded any given § 3553(a) factor is

a matter committed to the sound discretion of the district court.” United States v.

Williams, 456 F.3d 1353, 1363 (11th Cir. 2006), cert. denied, 127 S. Ct. 3040

(2007). 

Because our review is not de novo, we will not substitute our judgment in

weighing the factors, absent a “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 lies outside the range of reasonable sentences dictated by the

facts of the case.” Id. 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). “[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).” Talley, 431 F.3d at 788. 

Here, the district court was not required to explain precisely how it weighed

each § 3553(a) factor, and we find it plain that the court considered the § 3553(a)

factors in imposing a sentence at the lower end of the Guidelines range. Put
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simply, Yilmazel has not demonstrated that his sentence, at the low end of the

correctly calculated Guidelines range, was unreasonable. Accordingly, we affirm. 

AFFIRMED.