USA v. Travis M. Butler

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10659
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TRAVIS M. BUTLER,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 3:19-cr-00156-MCR-1
____________________
USCA11 Case: 21-10659 Date Filed: 07/14/2022 Page: 1 of 16

-- 1 of 16 --

2 Opinion of the Court 21-10659
Before WILSON, B RANCH, and TJOFLAT, Circuit Judges.
WILSON, Circuit Judge:
Travis Butler appeals his total life sentence following his
conviction for enticement of a minor to engage in sexual activity
and production of child pornography. Butler contends that his life
sentence, imposed after an upward variance, is substantively un-
reasonable because the district court failed to consider his mitiga-
tion arguments, considered improper factors, and unreasonably
weighed the 18 U.S.C. § 3553 sentencing factors. Because Butler
has not shown that the district court abused its discretion, we af-
firm.
I.
A.
In November 2019, Travis Butler was arrested and charged
in a five-count indictment for various offenses related to his illicit
sexual relations with a 15-year-old female. Butler pleaded guilty to
Counts One and Two of the indictment in exchange for the remain-
ing counts being dismissed. Count One charged Butler with entice-
ment of a minor to engage in sexual activity, in violation of 18
U.S.C. § 2422(b). Count Two charged Butler with production of
child pornography, in violation of 18 U.S.C. §§ 2251(a) and (e).
Butler’s presentence investigation report (PSI) described the
offense conduct as follows. In September 2019, the Pensacola Po-
lice Department (PPD) received two Cybertips from the National
Center for Missing and Exploited Children following its
USCA11 Case: 21-10659 Date Filed: 07/14/2022 Page: 2 of 16

-- 2 of 16 --

21-10659 Opinion of the Court 3
determination that an IP address, which was used to upload child
pornography to Facebook Messenger, was geo-located to Pen-
sacola, Florida. Both of the Cybertips referenced Facebook ac-
counts used by Butler and the victim.
The first Cybertip reported an incident that occurred in June
2019. The report stated that the victim uploaded to Facebook Mes-
senger, on three separate occasions, images of what appeared to be
child pornography. The Facebook account that received the mes-
sages was used by Butler. PPD reviewed the pictures, which in-
cluded graphic images of a young female’s vagina. The second
Cybertip also concerned activity in June 2019 and was subsequently
linked to the first Cybertip. The second Cybertip revealed conver-
sations on Facebook Messenger that documented the solicitation
and enticement of the victim to engage in sexually explicit conduct
that resulted in the production of child pornography at the request
of Butler. The conversations indicated that the two individuals had
met in person in order to engage in illicit sexual activity.
After PPD identified Butler as the user of the Facebook ac-
count, officers discovered that Butler was a convicted sexual of-
fender with a 2006 conviction for lewd and lascivious battery on a
victim between 12- and 15-years-old. PPD officers then obtained a
search warrant for all Facebook Messenger communications be-
tween Butler and the victim in this case. These messages confirmed
that the victim was 15-years-old and showed that, during the
timeframe that Butler and the victim were messaging, she moved
with her family from Florida to Tennessee. In messages obtained
USCA11 Case: 21-10659 Date Filed: 07/14/2022 Page: 3 of 16

-- 3 of 16 --

4 Opinion of the Court 21-10659
pursuant to the search warrant, Butler described his plans to travel
to Tennessee to engage in sexual activity with the victim and his
intention to bring another adult man with him to “take turns” with
her. Excerpts from these messages were included in Butler’s PSI.
The PSI also included a victim impact statement in which
the victim’s father explained that he and Butler were co-workers,
and that he had considered Butler a good family friend whom he
had trusted and invited to his home. The father conveyed the deep
remorse he felt for having introduced Butler to his family, and how
Butler’s betrayal of his trust profoundly impacted him and his
daughter. In asserting that Butler did not deserve another chance
at freedom, the father expressed the unimaginable pain Butler had
caused his daughter, describing his daughter as “no longer full of
life” and that Butler had “robbed her of her chance to shine.”
In calculating Butler’s Sentencing Guidelines range, the PSI
grouped Counts One and Two under U.S.S.G. § 3D1.2(a) because
they involved the same victim and act or transaction. Using Count
Two, the PSI assigned Butler a base offense level of 32 under
§ 2G2.1(a). It added two levels under § 2G2.1(b)(1)(B) because the
offense conduct involved a minor who was between 12- and 16-
years-old, and two levels under § 2G2.1(b)(2)(A) because Butler had
a sexual relationship with the victim on multiple occasions. Be-
cause the offense conduct involved the use of a cellphone to solicit
participation, two additional levels were added under
§ 2G2.1(b)(6)(B)(ii), resulting in an adjusted offense level of 38. The
PSI also found Butler to be a repeat and dangerous sex offender
USCA11 Case: 21-10659 Date Filed: 07/14/2022 Page: 4 of 16

-- 4 of 16 --

21-10659 Opinion of the Court 5
against minors under § 4B1.5(a)(1)(A), which likewise resulted in
an offense level of 38. Butler’s offense level was then reduced by
two levels for acceptance of responsibility under § 3E1.1(a), for a
total offense level of 36.
Regarding Butler’s criminal history, the PSI initially assigned
Butler a criminal history category of IV based on eight criminal his-
tory points. Five of these points were awarded for three controlled
substance convictions from 2006, 2012, and 2016. Butler’s three re-
maining criminal history points stem from his 2006 two-count con-
viction for lewd and lascivious battery and contributing to the de-
linquency of a child by impregnating a child under sixteen, in vio-
lation of Florida law. The PSI described the factual basis for the lat-
ter convictions as follows:
[O]n or about October 18, 2000, the victim, a 12-year-
old female, was walking to school when [Butler]
drove by in his vehicle. The victim asked [Butler] to
drop her off at school. After the victim got into [But-
ler’s] vehicle, he took her behind a trailer on [M]ock-
ingbird [L]ane and penetrated her with his penis. The
victim told [Butler] that she was in pain and told him
to stop which he refused. The victim stated that [But-
ler] “finished” and then took her to school. [Butler]
told the victim not to tell anyone about the incident,
and she did not . . . until April 25, 2001, when she told
her sister that she might be pregnant. On June 25,
2001, the victim gave birth to a baby. On March 9,
USCA11 Case: 21-10659 Date Filed: 07/14/2022 Page: 5 of 16

-- 5 of 16 --

6 Opinion of the Court 21-10659
2002, DNA test results revealed that [Butler] was the
baby’s father.
The PSI also contained the following information regarding
Butler’s other criminal conduct: “In 2002, prior to being arrested
for the [3-point] offense . . . , [Butler], age 27, impregnated [another
female victim], who was 15 years old. [Butler] was not charged for
this criminal conduct.”
Because Butler qualified as a repeat and dangerous sex of-
fender against minors, the PSI increased his criminal history cate-
gory from IV to V pursuant to § 4B1.5(a)(1)(A). With a total offense
level of 36 and a criminal history category of V, the PSI reflected a
Guidelines imprisonment range of 292–365 months. However, be-
cause of Butler’s criminal history, the minimum term of imprison-
ment that he could receive on Count Two was 25 years (300
months). In light of this mandatory minimum, the PSI adjusted
Butler’s Guidelines range to 300–365 months. The Guidelines cal-
culations were adopted by the district court and are uncontested
on appeal.
In addition to the offense conduct and Butler’s criminal his-
tory, the PSI contained personal and family information about But-
ler. This information included the fact that Butler had four children
born to four mothers and that two of the mothers were underage
(one 12-years-old and one 15-years-old) when Butler impregnated
them.
B.
USCA11 Case: 21-10659 Date Filed: 07/14/2022 Page: 6 of 16

-- 6 of 16 --

21-10659 Opinion of the Court 7
At sentencing, Butler urged the district court to give him the
mandatory minimum sentence of 25 years. Butler, who was 47-
years-old at the time of sentencing, stated that he would be “likely
over 70 years of age at the time of his release,” and attached a study
of recidivism among sexual offenders which showed that such in-
dividuals are unlikely to re-offend after the age of 60. He also as-
serted that, in the offense where he impregnated a 12-year-old, the
victim was a willing participant who misrepresented her age and
that he had confused her with her 19-year-old sister. He attached a
2002 deposition of the 12-year-old victim’s mother in which the
mother stated that a lot of people think her 12-year-old daughter
“looks older” than her 19-year-old daughter. Regarding the two
convictions for which he was being sentenced, Butler argued that
he was introduced to the victim through her and her father’s use of
marijuana, which Butler sold. Butler asserted that he was not a
predator, but that his life of crime had introduced him “to minors
who engaged in drug use and sex with adults.” Accordingly, he ar-
gued that he had a low likelihood of reoffending if put under super-
vision.
The Government, in turn, argued for a total sentence at the
upper end of the Guidelines range or above. It argued that the na-
ture and circumstances of the offense warranted a severe total sen-
tence because Butler had “engag[ed] in sexual acts with the victim,
entic[ed] the victim to produce child pornography, convinc[ed] the
victim to ‘delete’ evidence of their illicit relationship, and even at-
tempt[ed] to introduce a third party for a violent sexual
USCA11 Case: 21-10659 Date Filed: 07/14/2022 Page: 7 of 16

-- 7 of 16 --

8 Opinion of the Court 21-10659
encounter.” It also highlighted Butler’s two prior criminal sexual
acts with minors and his prior convictions for drug trafficking, ag-
gravated battery, and robbery. The Government asserted that the
only way for the public to be protected from Butler was for him to
be “incapacitated indefinitely.”
During the sentencing hearing, the district court asked the
Government why it had not charged Butler with the federal three
strikes provision under 18 U.S.C. § 3559(c), which would have car-
ried a mandatory life sentence. The Government stated in response
that there was “a question of law as to whether [it] applies,” and
that it believed the court could pronounce the “same exact sen-
tence”—life imprisonment—in any event. The court noted that it
believed that the Government could have “successfully prose-
cuted” § 3559(c) based on the facts and the law.
The district court agreed with the Government that Butler
was a dangerous offender, noting his history of hands-on conduct
with minors. The court also noted that an “anomaly in the Guide-
lines,” which “hasn’t been fixed,” prevented the court from apply-
ing U.S.S.G. § 4B1.5(b) because Butler had a prior sex conviction.
Section 4B1.5(b) provides for special, increased offense levels for
defendants being sentenced for sex crimes if they “engaged in a pat-
tern of activity involving prohibited sexual conduct.” Subsection
(b) does not apply, however, to defendants with prior sex offense
convictions who fall under subsection (a). The district court stated
that “if subsection (b) could have applied,
which it should apply—
there’s no question there’s a pattern of activity involving
USCA11 Case: 21-10659 Date Filed: 07/14/2022 Page: 8 of 16

-- 8 of 16 --

21-10659 Opinion of the Court 9
prohibited sexual conduct . . . —his Guidelines calculation would
have been 360 to life; whereas here now . . . his Guidelines [calcu-
lation] is 300 to 365 months.” The court found the Guidelines to be
“strange” and “unfortunate” in this regard.
Regarding Butler’s criminal history, the district court found
that not all of Butler’s prior criminal sexual conduct had been ac-
counted for in his Guidelines range. The court also stated that the
“record establishes overwhelmingly . . . that [Butler had] been part
of at least an 18-year pattern of hands-on sexually abusive and ex-
ploitative conduct against children,” and that none of his past sen-
tences had deterred him. Accordingly, the district court found the
following:
There is just too much here, Mr. Butler, and you just
haven’t gotten the message. Again, a 12-year-old, a
15-year-old, and a 14-year-old. I don’t think society
can afford for you to have yet another chance—[your
counsel] referred to opportunities, that you had op-
portunities to have sex with these kids. I feel like I
have to remove those opportunities so that there is
not any other child who is victimized by you in the
future. I am going to vary from the Guidelines range
and impose a life sentence in your case. And I feel
very strongly that there is not a lesser sentence that
would suffice to protect the community from you in
the future in regards to sexual crimes against children.
. . . For the reasons I’ve noted, I don’t believe the
USCA11 Case: 21-10659 Date Filed: 07/14/2022 Page: 9 of 16

-- 9 of 16 --

10 Opinion of the Court 21-10659
Guidelines calculation is sufficient, and I don’t believe
the 25 years mandatory minimum [is sufficient],
which, again, doesn’t take into account much of the
conduct that I’m considering in imposing this sen-
tence. . . . That’s the sentence that will be handed
down today in Mr. Butler’s case. The sentence largely
I believe needs to be imposed to protect the commu-
nity but also to serve as a deterrent to other individu-
als.
The court clarified that it was sentencing Butler to life im-
prisonment on Count One and 50 years’ imprisonment on Count
Two, to run concurrently. The court later filed a statement of rea-
sons which stated that the court had adopted the PSI without
change. The statement of reasons noted many of the same consid-
erations the court expressed at the sentencing hearing, including
the offense conduct, Butler’s history of sex crimes, and his other
criminal history. The court also noted that, to “avoid unwarranted
sentencing disparities” it had “determined that the facts would
have supported a conviction under 18 U.S.C. § 3559, which would
have carried a mandatory life sentence.” Finally, it stated that it had
considered Butler’s arguments that the 12- and 15-year-old victims
were willing participants, that his environment had created the op-
portunity for him to engage in sex with young girls, and that he did
not possess any child pornography. The court, however, did not
find that Butler’s arguments justified a lesser sentence than life im-
prisonment.
USCA11 Case: 21-10659 Date Filed: 07/14/2022 Page: 10 of 16

-- 10 of 16 --

21-10659 Opinion of the Court 11
This is Butler’s appeal of the substantive reasonableness of
his sentence.
II.
We review the substantive reasonableness of a sentence for
an abuse of discretion.
Gall v. United States, 552 U.S. 38, 51 (2007).
When reviewing a sentence imposed outside of the Guidelines
range, we “may consider the extent of the deviation, but must give
due deference to the district court’s decision that the [18 U.S.C.]
§ 3553(a) factors, on a whole, justify the extent of the variance.”
Id.
In reviewing the reasonableness of a sentence, we will not substi-
tute our own judgment for that of the sentencing court and we will
affirm a sentence so long as the court’s decision was “in the ballpark
of permissible outcomes.”
United States v. Rosales-Bruno, 789 F.3d
1249, 1257 (11th Cir. 2015).
A district court imposes a substantively unreasonable sen-
tence, and thereby 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.”
United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010)
(en banc). A district court commits a clear error of judgment when
it weighs the § 3553(a) sentencing factors unreasonably.
Id.
Under § 3553(a), a sentencing court must impose a sentence
that is “sufficient, but not greater than necessary” to reflect the se-
riousness of the offense, to promote respect for the law, to provide
USCA11 Case: 21-10659 Date Filed: 07/14/2022 Page: 11 of 16

-- 11 of 16 --

12 Opinion of the Court 21-10659
just punishment for the offense, to afford adequate deterrence, and
to protect the public from further crimes of the defendant. 18
U.S.C. § 3553(a)(2). The court also must consider, among other fac-
tors, the nature and circumstances of the offense and the history
and characteristics of the defendant, as well as “the need to avoid
unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct.”
Id. §§
3553(a)(1), (6).
While sentencing courts are required to consider all of the
sentencing factors, the weight given to each factor is committed to
the sound discretion of the district court.
United States v. Amedeo,
487 F.3d 823, 832 (11th Cir. 2007). We will not second guess the
weight given to a § 3553(a) factor so long as the sentence is reason-
able under the circumstances.
United States v. Pugh, 515 F.3d 1179,
1191 (11th Cir. 2008). In fact, a district court may attach great
weight to one § 3553(a) factor over others.
See United States v.
Overstreet, 713 F.3d 627, 638 (11th Cir. 2013).
Sentences within the Guidelines range are afforded a pre-
sumption of reasonableness, however no such presumption—of
reasonableness or unreasonableness—applies to sentences outside
the Guidelines range.
See Gall, 552 U.S. at 51. When imposing a
variance, “a district judge must give serious consideration to the
extent of any departure from the Guidelines and must explain [her]
conclusion that an unusually lenient or an unusually harsh sen-
tence is appropriate in a particular case with sufficient justifica-
tions.”
Id. at 46.
USCA11 Case: 21-10659 Date Filed: 07/14/2022 Page: 12 of 16

-- 12 of 16 --

21-10659 Opinion of the Court 13
Upward variances are imposed based upon the § 3553(a) fac-
tors.
See, e.g.,
Overstreet, 713 F.3d at 637–39. Thus, a sentencing
court may impose an upward variance based upon uncharged con-
duct as it relates to the history and characteristics of the defendant,
as well as the need to promote respect for the law, afford adequate
deterrence, and protect the public.
See id. at 639–40. The court may
also impose an upward variance if it concludes that the Guidelines
range was insufficient in light of a defendant’s criminal history.
United States v. Sanchez, 586 F.3d 918, 936 (11th Cir. 2009). When
doing so, district courts are afforded “broad leeway in deciding
how much weight to give to prior crimes the defendant has com-
mitted.”
Rosales-Bruno, 789 F.3d at 1261.
A district court’s failure to discuss mitigating evidence does
not indicate that the court “erroneously ‘ignored’ or failed to con-
sider th[e] evidence.”
Amedeo, 487 F.3d at 833. Rather, a district
court’s acknowledgment that it has considered the § 3553(a) factors
and the parties’ arguments is sufficient.
United States v. Sarras, 575
F.3d 1191, 1219 (11th Cir. 2009).
III.
Butler’s life sentence is substantively reasonable. As noted
above, we have identified three ways in which a district court can
abuse its discretion by imposing a substantively unreasonable sen-
tence: (1) failing to properly consider a relevant sentencing factor
that was due significant weight, (2) giving significant weight to a
factor that was not relevant, or (3) committing a clear error of judg-
ment by weighing the sentencing factors unreasonably.
Irey, 612
USCA11 Case: 21-10659 Date Filed: 07/14/2022 Page: 13 of 16

-- 13 of 16 --

14 Opinion of the Court 21-10659
F.3d at 1189. Butler has failed to show that the district court com-
mitted any such error.
Regarding the first way a sentencing court can abuse its dis-
cretion, Butler argues that the district court failed to consider his
age, his amenability to treatment, his acceptance of responsibility,
and the circumstances of his prior offenses. Butler’s acceptance of
responsibility, however, was correctly reflected in his Guidelines
calculation. And the remaining three factors
were considered, they
just were deemed to be either aggravating or irrelevant rather than
mitigating evidence warranting a lesser sentence. The district court
specifically considered Butler’s age; it just didn’t find it to be the
mitigating factor Butler argued it should be. The court gave great
weight to the fact that Butler had engaged in an 18-year pattern of
sexually abusive behavior towards children, which reflected the
lack of a deterrent effect by his prior convictions, sexual offender
registration requirement, or the 115 months he served in the fed-
eral department of corrections from 1994 to 2010. It was well
within the court’s discretion to do so.
See Amedeo, 487 F.3d at 832.
In regard to the second way a sentencing court can abuse its
discretion, Butler identifies no irrelevant sentencing factor that the
district court gave significant weight to. The only factors that But-
ler identifies as being weighed too heavily are his history of sex
crimes involving minors and the need to protect the community.
These are, without a doubt, relevant factors to be considered when
sentencing a repeat sex offender for a sex offense and it was cer-
tainly within the court’s discretion to weigh them heavily.
See id.
USCA11 Case: 21-10659 Date Filed: 07/14/2022 Page: 14 of 16

-- 14 of 16 --

21-10659 Opinion of the Court 15
It is also noteworthy that defense counsel suggested at sentencing
that the need to protect the community
is the most important fac-
tor to be considered: “That’s what I see as the most important fac-
tor in Mr. Butler’s case that this Court ought to focus on, what’s
sufficient but not more than is required to protect the community
in Mr. Butler’s case.” The district court’s sentence reflects its agree-
ment with defense counsel that this factor should weigh heavily,
although the district court did not agree that the factor weighed in
Butler’s favor.
Finally, Butler has not shown that the district court abused
its discretion by weighing the sentencing factors unreasonably. “In
applying the § 3553(a) factors to a sentence, the weight to be ac-
corded any given § 3553(a) factor is a matter committed to the
sound discretion of the district court, and we will not substitute our
judgment in weighing the relevant factors.”
United States v. Mar-
tinez-Gonzalez, 663 F.3d 1305, 1311 (11th Cir. 2011) (per curiam)
(alteration adopted and internal quotation marks omitted). The dis-
trict court considered the relevant sentencing factors and did not
heavily weigh any irrelevant factor. The weight attributed to each
sentencing factor is within the court’s sound discretion, and the
court did not commit a clear error of judgment in its weighing of
the § 3553(a) factors in Butler’s case.
IV.
To conclude, the district court properly calculated the appli-
cable Guidelines range but found that the resulting range did not
adequately reflect Butler’s criminal history or the need to protect
USCA11 Case: 21-10659 Date Filed: 07/14/2022 Page: 15 of 16

-- 15 of 16 --

16 Opinion of the Court 21-10659
the public. This is a finding that the district court was within its
discretion to make, as the Supreme Court has held that a variance
from the Guidelines range can “be based on the sentencing judge’s
disagreement with whether [the advisory sentence] properly re-
flects the § 3553(a) factors.”
Rosales-Bruno, 789 F.3d at 1254. And
Butler has not shown that the district court’s emphasis on certain
sentencing factors was “unjustified.”
See Pugh, 515 F.3d at 1191
(stating that “a district court’s unjustified reliance on any one [§]
3553(a) factor may be a symptom of an unreasonable sentence”).
Because Butler’s life sentence is substantively reasonable, the judg-
ment of the district court is AFFIRMED.
USCA11 Case: 21-10659 Date Filed: 07/14/2022 Page: 16 of 16

-- 16 of 16 --