FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 11, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-11373

Non-Argument Calendar

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D. C. Docket No. 08-00042-CR-4-SPM-WCS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KIRK DOUGLAS CREARY,

Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Florida

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(June 11, 2010)

Before EDMONDSON, BLACK and PRYOR, Circuit Judges.
PER CURIAM:

Kirk Douglas Creary appeals his 210-month total sentence for (1) inducing a

minor to engage in sexual activity, 18 U.S.C. § 2422(b); (2) extortion, 18 U.S.C. §

875(d); and (3) possession of child pornography, 18 U.S.C. § 2252A(a)(5)(B). No

reversible error has been shown; we affirm.

On appeal, Creary argues that the district court should have included only

one -- not four -- victims in its guidelines calculations because his conduct towards

the other minor victims did not amount to sexual exploitation or, in the case of one

victim, was not part of the relevant conduct on the inducement count. But the

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government argues that we need not address the merits of Creary’s arguments

because the district court stated that it would impose the same sentence even if it

calculated incorrectly the guidelines range.

In cases involving disputed guidelines issues, we have invited lower courts

to state on the record whether they would have imposed the same sentence even if

they have decided the guidelines issue incorrectly. United States v. Keene, 470

F.3d 1347, 1349 (11th Cir. 2006). If a district court makes such a statement, we

See U.S.S.G. § 2G2.1(d)(1) (providing that, in offenses involving exploitation of more 1

than one minor, the multiple count adjustment shall be applied as if the exploitation of

each minor had been contained in a separate count of conviction, whether or not

each minor specifically is cited in the count of conviction); U.S.S.G. § 3D1.4.

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will uphold the sentence as long as it is reasonable under the 18 U.S.C. § 3553(a)

factors; and in determining whether a sentence is reasonable, we assume that the

district court decided the guidelines issue incorrectly and that the advisory

guidelines range should be reduced accordingly. Id.

Here, Creary challenged the guidelines calculation based on the number of

victims. In his objections to the presentence investigation report and at sentencing,

Creary contended that his total offense level should be 35 and that his guidelines

range should be 168 to 210 months’ imprisonment. But the district court

concluded that four victims should be included in the guidelines calculations and

determined Creary’s total offense level to be 37 and his guidelines range to be 210

to 262 months. The district court stated that “technical differences” in the

calculation by Creary resulted in a different sentencing range, but “because the

underlying conduct remain[ed] the same,” the court would impose the same

sentence even if it had sustained Creary’s objections. So, because the district court

stated that it would impose the same sentence even if it had made a guidelines

calculation error, we assume that Creary’s proffered range was the correct one --

168 to 210 months; and we review Creary’s sentence for reasonableness.

We evaluate the substantive reasonableness of a sentence -- whether inside

or outside the guidelines range -- under a deferential abuse-of-discretion standard.

Gall v. United States, 128 S.Ct. 586, 597 (2007). The party challenging the

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reasonableness of the sentence bears the burden of establishing that the sentence is

unreasonable in the light of both the record and the section 3553(a) factors. United

States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). Briefly stated, under section

3553(a), a district court should consider, among other things, the nature and

circumstances of the offense, the history and characteristics of the defendant, the

need for the sentence to provide adequate deterrence, respect for the law, and

protection of the public, policy statements of the Sentencing Commission,

provision for the medical and educational needs of the defendant, and the need to

avoid unwarranted sentencing disparities. See 18 U.S.C. § 3553(a)(1)-(7).

Here, even if the district court erred in its determination of the number of

victims, we conclude that Creary’s ultimate sentence is reasonable. The 210-

month sentence fell well below the statutory maximum sentence of life

imprisonment he faced on the inducement count. See 18 U.S.C. § 2422(b); United

States v. Winingear, 422 F.3d 1241, 1246 (11th Cir. 2005) (comparing, as one

indication of reasonableness, the actual prison term imposed against the statutory

maximum). And Creary’s sentence was within either guidelines range discussed in

the district court. See Talley, 431 F.3d at 788 (noting that “ordinarily we would

expect a sentence within the Guidelines range to be reasonable”). The district

court stated that it had considered the section 3553(a) factors and that the

substantial sentence reflected the seriousness of the offense.

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The record reflects that Creary, posing as a 14-year-old boy, engaged in

internet chats (using a web camera) with three underage girls and encouraged them

to take off their clothes and pose in sexually suggestive poses. Creary copied the

images he received from the girls onto his computer. And Creary’s computer

contained thousands of online chats where he requested naked pictures from

unknown females and over 600 images of child pornography. On this record, we

cannot say that Creary’s sentence was unreasonable.

We conclude that any misapplication of the guidelines about the number of

victims “did not affect the district court’s selection of the sentence imposed.”

Williams v. United States, 112 S.Ct. 1112, 1120-21 (1992) (explaining that

harmless error is applied to sentencing cases, and remand is unnecessary if the

party defending the sentence persuades the appeals court that the district court

would have imposed the same sentence absent the erroneous factor). Because we

conclude that any calculation error was harmless, we do not address the merits of

Creary’s arguments.

AFFIRMED.

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In his reply brief, Creary argues that he miscalculated his guidelines range and that it 2

should be 135 to 168 months. Because the district court did not justify an upwardly variant

sentence, he contends, the error was not harmless. But, in the district court and in his initial

brief, Creary specifically argued that his range should be 168 to 210 months. The invited error

doctrine precludes us from entertaining Creary’s argument. See United States v. Love, 449 F.3d

1154, 1156-57 (11th Cir. 2006) (defendant precluded from challenging the length of the

supervised release portion of his sentence when he specifically had “induced or invited the

district court to impose a sentence that included a term of supervised release”).

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