United States v. Edward Hope , 336 F. App'x 856 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 3, 2009
No. 08-13408
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-60007-CR-WPD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDWARD HOPE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 3, 2009)
Before EDMONDSON, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Defendant-Appellant Edward Hope appeals his 87-month sentence for
possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) and
(b)(2). No reversible error has been shown; we affirm.
Hope challenges the substantive reasonableness of the within guidelines
sentence imposed; he argues that a below guidelines range sentence of 60-months
would be more than sufficient. No error is claimed in the calculation of the 87 to
108-month guideline range.
Appellate review of the substantive reasonableness of a sentence -- whether
inside or outside the guidelines range -- is under an abuse-of-discretion standard.
Gall v. United States, 128 S.Ct. 586, 597 (2007). This review is deferential. A
within guidelines range sentence is expected ordinarily to be reasonable; the
appellant bears the burden of establishing the absence of reasonableness in the light
of the record and the section 3553(a) factors. See United States v. Gonzalez, 550
F.3d 1319, 1324 (11th Cir. 2008), citing United States v. Talley, 431 F.3d 784, 788
(11 Cir. 2005).
Hope argued at sentencing that his criminal history, his behavior during the
three-year period pending indictment, his compliance with all conditions of pretrial
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release, the dependency of his wife and children upon him for financial support,
together with the absence of indication that he continued to possess child
pornography, all required a sentence below the advisory guideline range. Hope
also contended that a sentence near the 120-month statutory maximum would be
unreasonable in the light of the facts of his case; a sentence of 60 months would be
fair.
The transcript of the sentencing hearing makes it clear that the district court
considered Hope’s arguments and the section 3553(a) factors; the district court
stated expressly that the arguments advanced by Hope in mitigation more properly
were considered within the guideline range and supported a low-end guideline
sentence. In short, the district court was unpersuaded that the factors upon which
Hope relies justified a variance from the advisory guideline range.
Hope has failed to carry his burden of establishing that his sentence was
substantively unreasonable. We cannot say the 87-month low-end guideline range
sentence was “outside the range of reasonable sentences dictated by the facts of the
case.” United States v. Williams, 456 F.3d 1353, 1363 (11th Cir. 2006), cert.
dismissed 127 S.Ct. 3040 (2007), abrogated on other grounds Kimbrough v.
United States, 128 S.Ct. 558 (2007). No clear error of judgment has been shown.
See id. at 1363 (appellate court will only reverse a procedurally proper sentence
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when convinced that the district court committed a clear error of judgment).
AFFIRMED.
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