United States v. Kirk Douglas Creary , 382 F. App'x 850 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 11, 2010
No. 09-11373
JOHN LEY
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 08-00042-CR-4-SPM-WCS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KIRK DOUGLAS CREARY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(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.1 But the
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
1
See U.S.S.G. § 2G2.1(d)(1) (providing that, in offenses involving exploitation of more
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.2
2
In his reply brief, Creary argues that he miscalculated his guidelines range and that it
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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