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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-13534
Non-Argument Calendar
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D.C. Docket No. 6:19-cr-00026-CEM-TBS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT FRANCIS PRATERSCH,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(March 31, 2020)
Before WILSON, BRANCH and ANDERSON, Circuit Judges.
PER CURIAM:
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Robert Pratersch appeals his 15-month sentence for threatening a federal
official, in violation of 18 U.S.C. § 115(a)(1)(B), and transmitting a threatening
communication in interstate and foreign commerce, in violation of 18 U.S.C.
§ 875(c). He argues that his sentence is substantively unreasonable because the
district court failed to properly weigh the 18 U.S.C. § 3553(a) factors in
determining whether to impose a downward variance.1 After review, we affirm.
I.
Following threatening phone calls to the office of Senator Bernard Sanders,
Pratersch was charged with threatening a federal official, in violation of 18 U.S.C.
§ 115(a)(1)(B), and transmitting a threatening communication in interstate and
foreign commerce, in violation of 18 U.S.C. § 875(c). 2 A jury convicted him of
1
Section 3553(a) mandates that the district court “impose a sentence sufficient, but not
greater than necessary” to: (1) reflect the seriousness of the offense, promote respect for the law,
and provide just punishment for the offense; (2) afford adequate deterrence to criminal conduct;
(3) protect the public from further crimes of the defendant; and (4) provide the defendant with
needed educational or vocational training, medical care, or other correctional treatment in the
most effective manner. 18 U.S.C. § 3553(a)(2)(A)–(D). In addition, the court must consider: (1)
the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the kinds of sentences available; (3) the guideline sentencing range; (4) any pertinent policy
statements; (5) the need to avoid unwarranted sentencing disparities; and (6) the need to provide
restitution to any victims.
Id. § 3553(a)(1), (3)–(7).
2
The underlying communications and threats were made on September 29, 2018 in
phone calls to the Burlington, Vermont office of Senator Bernard Sanders. The communications
stated:
First Message (4:43 p.m.)
Bernie, you Jew bastard. You had your chance. Now we’re going to behead you
ISIS style video taped for the world to see. [Inaudible] f--king hoes you got
working for you. What do you got them sucking your c-ck too? You freak
bastard.
2
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both counts and the district court sentenced Pratersch to 15-months imprisonment
and one-year supervised release. At sentencing, without objection by either party,
the district court adopted the factual findings and guideline calculations in the
presentence investigation report (“PSI”) and determined that the advisory guideline
range for Pratersch’s convictions was 15 to 21 months imprisonment. 3 The PSI
also recommended a downward variance to three years of probation. The
government argued that Pratersch should be sentenced at the low end of the
guidelines and even if the court varied downwards it should still impose some
period of incarceration for deterrence value.
In issuing Pratersch’s sentence, the district court compared Pratersch’s
actions to those of 24-year-old Jeremy Addison, who sent three different letters
threatening President Obama (including one in an envelope also containing white
Second Message (5:12 p.m.)
Bernie you f--king Jew bastard. How’s the knife going to feel cutting your head
off boy? You Jew f--king c-cks-cker.
Third Message (5:13 p.m.)
You p--sy ass f--king Bernie Sanders c-cks-cker. Leave your name and address
we’ll get back to you. You motherf--ker. Listen you Jew f--king c-cks-cker.
You’re dead. You’re f--king dead.
3
The statutory maximum penalty is ten years for threatening to murder an official, 18
U.S.C. § 115(b)(4), and five years for making a threatening communication in interstate or
foreign commerce, 18 U.S.C. § 875(c).
3
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powder) and was sentenced to 84-months imprisonment after pleading guilty. 4 The
district court recognized that there were some differences between Pratersch’s
actions and Addison’s actions: unlike Addison’s threats, Pratersch’s threats
reached the recipient’s office; unlike Addison, Pratersch did not accept
responsibility; and, unlike Addison, Pratersch lied under oath. The district court
then stated that it was “trying to achieve some fairness across the board” and could
not “think of a reason why [Pratersch] should get a downward variance especially
in light of [Addison].” While the district court indicated it “look[ed] desperately in
all of these cases to try to find a reason to downward vary,” the court concluded
that it “just can’t in good conscience . . . live with [itself] knowing that [] Addison
is serving 84 months in prison for pretty much the same thing . . . while you’re just
going to walk out of here with a slap on the hand when you both cause the same
amount of chaos and threats.”
The district court sentenced Pratersch to 15-months imprisonment and one
year of supervised release, stating, “[a]fter considering the advisory sentencing
guidelines and all of the factors identified in Title 18, U.S. Code, Sections
3553(a)(1) through (7), the Court finds that the sentence imposed is sufficient, but
not greater than necessary, to comply with the statutory purposes of sentencing.”
4
The district court noted that Addison had a “significantly worse criminal history than
Mr. Pratersch” and therefore his guidelines range was significantly higher: 84 to 105 months.
4
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On appeal, Pratersch argues that his 15-month sentence is substantively
unreasonable because the district court gave significant weight to an insignificant
factor: the need to avoid a disparity and unfairness with an unrelated case where a
defendant was sentenced to 84 months for similarly making threatening
communications to a federal official. He points to an unpublished, nonbinding
opinion from this court in United States v. Ochoa-Molina, 664 F. App’x 898, 898–
99 (11th Cir. 2016) to support his contention.
II.
We review the substantive reasonableness of a sentence for an abuse of
discretion. United States v. Carpenter,
803 F.3d 1224, 1234 (11th Cir. 2015). A
district court abuses its discretion when it “(1) fails to afford consideration to
relevant factors that were due significant weight, (2) gives significant weight to an
improper or irrelevant factor, or (3) commits a clear error of judgment in
considering the proper factors.”
Id. (quoting United States v. Irey,
612 F.3d 1160,
1189 (11th Cir. 2010)). “[T]he 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,
526 F.3d 1312, 1322 (11th Cir. 2008) (quoting United States v. Clay,
483
F.3d 739, 743 (11th Cir. 2007)). Ultimately, we will only vacate a defendant’s
sentence if we have “the definite and firm conviction that the district court
committed a clear error of judgment in weighing the § 3553(a) factors by arriving
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at a sentence that lies outside the range of reasonable sentences dictated by the
facts of the case.”
Carpenter, 803 F.3d at 1234.
III.
Upon careful review, we conclude that the district court did not abuse its
discretion because Pratersch’s sentence is not substantively unreasonable. A
discussion of each of § 3553(a)’s factors is unnecessary; the court’s
acknowledgment that it has considered the § 3553(a) factors will suffice. United
States v. Amedeo,
487 F.3d 823, 832 (11th Cir. 2007). The court’s failure to
discuss mitigating evidence does not indicate that it ignored or did not to consider
the evidence in making its determination.
Id. at 833.
The party challenging the sentence bears the burden of proving that the
sentence is unreasonable in light of the record and § 3553(a) factors. United States
v. Tome,
611 F.3d 1371, 1378 (11th Cir. 2010). We ordinarily expect a sentence
imposed within the guideline range to be reasonable. United States v. Croteau,
819 F.3d 1293, 1309–10 (11th Cir. 2016). Another indicator of reasonableness is a
sentence imposed well below the statutory maximum penalty.
Id. at 1310.
Here, following its discussion of Addison’s similar case, the district court
mentioned, analyzed, and applied the § 3553(a) factors—the need to deter
Pratersch and others from threatening officials based on their political viewpoint
and the seriousness of the offense—and stressed on the particular circumstances of
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Pratersch’s case: Pratersch’s threats had reached the official’s office, he failed to
accept responsibility, and his testimony at trial was not credible. See
Amedeo, 487
F.3d at 832. Furthermore, the 15-month sentence imposed was at the lower end of
the advisory guideline range and well below the statutory maximum. See
Croteau,
819 F.3d at 1309–10. We conclude that the district court did not abuse its
discretion and Pratersch’s sentence is substantively reasonable.5
AFFIRMED.
5
We also note that Pratersch’s argument relies primarily on an unpublished, nonbinding
opinion from this court in United States v. Ochoa-Molina, 664 F. App’x 898, 898–99 (11th Cir.
2016). However, we distinguish Pratersch’s case from our prior decision in Ochoa-Molina. To
start, unlike in Ochoa-Molina the district court did not say that it could not vary at all to give
Pratersch a lower sentence, rather it stated that it could not “in good conscience” vary. This
distinction is important because the court was invoking its own discretion. Further, the district
court did not impose a “floor” on Pratersch’s sentence, since Pratersch’s sentence was 69 months
lower than Addison’s. Instead, the court merely analogized between the two cases to determine
if a variance was appropriate. Consideration of a similar situation and sentence was a
permissible, and in fact required, aspect of the district court’s decision. See § 3553(a)(6) (stating
that among the factor the court shall consider is the need to avoid unwarranted sentence
discrepancies).
7
