USA v. Michael Greenberg

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12940
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL GREENBERG,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:20-cr-00327-TPB-TGW-1
____________________
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2 Opinion of the Court 21-12940
Before J ORDAN, NEWSOM , and BLACK , Circuit Judges.
PER CURIAM:
Michael Greenberg appeals his sentence of 216 months’ im-
prisonment, as imposed for the offense1 of attempted enticement
of a minor by electronic device, in violation of 18 U.S.C. § 2422(b).
Greenberg asserts his sentence was substantively unreasonable be-
cause the district court improperly focused on the nature and cir-
cumstances of the offense and failed to properly weigh the mitigat-
ing factors, namely, his lack of prior sexual criminal history and that
no victims were harmed by his conduct.
“Substantive reasonableness involves examining the totality
of the circumstances and whether the sentence is supported by the
sentencing factors outlined in [18 U.S.C.] § 3553(a).”
United States
v. Wayerski, 624 F.3d 1342, 1353 (11th Cir. 2010). “The party chal-
lenging a sentence has the burden of showing that the sentence is
unreasonable in light of the entire record, the § 3553(a) factors, and
the substantial deference afforded sentencing courts.”
United
States v. Rosales-Bruno, 789 F.3d 1249, 1256 (11th Cir. 2015). A
district court abuses its discretion and imposes a substantively un-
reasonable sentence only if it: (1) fails to consider relevant factors
1 Greenberg was also sentenced to concurrent terms of 120 months’ impris-
onment for the offenses of attempted transfer of obscene material to a minor,
in violation of 18 U.S.C. § 1470, and travel with intent to engage in illicit sexual
conduct, in violation of 18 U.S.C. § 2423(b).
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21-12940 Opinion of the Court 3
that were due significant weight; (2) gives significant weight to an
improper or irrelevant factor; or (3) commits a clear error of judg-
ment in considering the proper factors.
Id. A district court com-
mits a “clear error of judgment” when it unreasonably balances the
proper factors.
United States v. Irey, 612 F.3d 1160, 1189 (11th Cir.
2010) (
en banc).
Greenberg’s sentence is substantively reasonable because
the court did not abuse its discretion in weighing the § 3553(a) fac-
tors.2
See Gall v. United States, 552 U.S. 38, 41 (2007) (providing
an appellate court reviews the reasonableness of a sentence for
abuse of discretion);
United States v. Perkins, 787 F.3d 1329, 1342
(11th Cir. 2015) (explaining we “commit[] to the sound discretion
of the district court the weight to be accorded to each § 3553(a) fac-
tor”). In balancing the § 3553(a) factors, the court noted, as miti-
gating factors Dr. Valerie McClain’s report regarding Greenberg’s
mental health issues, Greenberg’s difficulties in life after his previ-
ous incarceration, and the nine years he spent crime-free, and, as
aggravating factors, his actions in travelling from Houston to
2 The district court must impose a sentence that is sufficient, but not greater
than necessary, to comply with the purposes listed in § 3553(a)(2), including
the need to reflect the seriousness of the offense, promote respect for the law,
sufficiently punish the offense, deter criminal conduct, and protect the public
from the defendant’s future criminal conduct.
See 18 U.S.C. § 3553(a)(2). The
court must also consider the nature and circumstances of the offense and the
history and characteristics of the defendant.
Id. § 3553(a)(1).
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4 Opinion of the Court 21-12940
Tampa with the intent to engage in illicit sexual conduct with a six-
year-old child, whom he believed to exist.
See 18 U.S.C. § 3553(a).
While Greenberg contends he never acted on his texts, the
evidence shows he bought an airline ticket, boarded a plane, and
traveled to another state, just as he planned in his texts. The fact
the victim did not actually exist did not affect his offense conduct
in attempting to entice a minor because he believed the six-year-
old child existed and intended to engage in illicit sexual conduct
with that child. While Greenberg asserts the court failed to
properly weigh his lack of prior sexual criminal history, the district
court noted it had weighed the § 3553(a) factors, and the weight
accorded to each factor is within its sound discretion. The district
court did not abuse its discretion, as it did not fail to consider rele-
vant factors, give significant weight to an improper factor, or un-
reasonably consider the proper factors, particularly where it noted
it weighed the § 3553(a) factors.
See Rosales-Bruno, 789 F.3d at
1256;
Irey, 612 F.3d at 1189.
Lastly, Greenberg’s 216-month imprisonment sentence was
well below the statutory maximum of life imprisonment.
See
United States v. Goldman, 953 F.3d 1213, 1222 (11th Cir. 2020)
(stating one indicator of reasonableness is that the sentence falls
well below the maximum penalty). Greenberg’s sentence was
within the guidelines and was within the range of reasonable sen-
tences dictated by the facts.
See id. Accordingly, we affirm.
AFFIRMED.
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