USA v. Jeffrey Boone, Jr.

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11153
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEFFREY W. BOONE, JR.,
a.k.a. younginsboo,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 3:21-cr-00071-MCR-1
____________________
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2 Opinion of the Court 22-11153
Before J ORDAN, L AGOA, and H ULL , Circuit Judges.
H ULL , Circuit Judge:
Defendant Jeffrey Boone appeals his 840-month sentence
imposed after he pled guilty to using a minor to produce child
pornography, and distributing and possessing child pornography,
in violation of 18 U.S.C. §§ 2251 and 2252A. As detailed later, the
child pornography Boone produced included images and videos of
his serious and horrific sexual abuse of his own four-year-old
daughter, and Boone’s 840-month sentence is equal to the advisory
guidelines sentence. After careful review and with the benefit of
oral argument, we affirm Boone’s sentence.
I. BACKGROUND
A. Offense Conduct
In October 2021, a three-count indictment charged Boone
with using a minor to engage in sexually explicit conduct for the
purpose of producing child pornography, in violation of 18 U.S.C.
§ 2251(a) and (e) (Count 1); distributing child pornography, in
violation of 18 U.S.C. § 2252A(a)(2) and (b)(1) (Count 2); and
possessing child pornography, in violation of 18 U.S.C.
§ 2252A(a)(5)(B) and (b)(2) (Count 3). Boone pled guilty to all three
counts pursuant to a plea agreement in which the Government
agreed not to file any further charges arising out of the same
transactions. We recount the undisputed facts based on the factual
proffer for Boone’s guilty plea and the presentence investigation
report (“PSR”).
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On October 1, 2021, an online covert employee (“OCE”)
with the Federal Bureau of Investigation (“FBI”) received two
separate private messages via Kik Messenger from a user with the
name “younginsboo” that contained child pornography.1
Specifically, each message contained a separate image of a
prepubescent girl who was clearly less than ten years old holding
onto an adult man’s erect penis that was exposed out of a pair of
camouflage shorts. In both images, the girl was wearing a
distinctive outfit with pine trees on it and navy-blue bedsheets were
visible in the background.
Younginsboo subsequently sent another private message to
the OCE stating, “Soon I’ll have a video for you.” In response, the
OCE asked, “[W]hat do you mean?” Younginsboo replied that he
and the child in the images he previously sent “should get some
play time soon” and that he was waiting for his wife to leave. The
OCE replied, “You with her?”, to which younginsboo responded
“mmm hmmm.” Younginsboo then sent the OCE a purple-
colored devil emoji, followed by an image of the same child
standing on a bed with her pants pulled down showing her
underwear and her shirt spread open exposing her bare stomach
area, again with navy-blue bedsheets in the background. The
image led the OCE to believe the younginsboo individual had
taken the pictures just prior to sending them and that he had
immediate access to the child.
1 Kik Messenger is an instant messaging application for mobile devices that
allows users to share photographs, among other things.
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Via an emergency disclosure request, the FBI obtained
subscriber records from Kik Messenger for the username
younginsboo and subscriber records from Cox Communication,
Inc. for the IP address associated with younginsboo. The records
identified Boone as the owner of the younginsboo account.
Through law enforcement databases, the FBI located Boone’s
registered address in Shalimar, Florida and identified him as an
active-duty member of the military. The FBI also determined that
Boone had three minor children, one of whom appeared to be the
child in the images sent to the OCE from younginsboo.
A magistrate judge issued a search warrant for Boone’s
residence, which was executed within a few hours, late in the
evening of October 1. In the residence, the officers conducting the
search found the child wearing the distinctive pine trees outfit seen
in the images described above, the navy-blue bedsheets, and Boone
wearing the camouflage shorts seen on the adult man in the
images.
When they searched Boone’s personal electronic device, the
officers found fifteen images and two videos featuring the same
child—later confirmed to be Boone’s four-year-old daughter—
including depictions of the child masturbating Boone, of Boone
slapping his penis against the child’s exposed vagina, and of the
child lying on her back in the bed with her genitals exposed.2
2 In Boone’s sentencing memorandum, his counsel represented that Boone
“recorded three videos over a two-day span,” while the PSR provides that the
child sexual abuse material Boone produced of his daughter “included two
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22-11153 Opinion of the Court 5
Boone’s device also contained 249 images and 158 videos involving
the sexual abuse of other children not produced by Boone. This
evidence resulted in the possession, production, and distribution of
child pornography charges set out above.
B. Presentence Investigation Report
After Boone pled guilty to the charges, a PSR was prepared.
The PSR grouped Boone’s three counts together and assigned a
total offense level of 43 after factoring in enhancements based on
the victim’s age and other offense characteristics. Pertinent to this
appeal, the PSR recommended applying a five-level increase
pursuant to U.S.S.G. § 4B1.5(b) because (1) the offense was a
covered sex crime and neither § 4B1.1 nor § 4B1.5(a) applied and
(2) Boone “engaged in a pattern of activity involving prohibited
sexual conduct.” As explained in the PSR, the pattern-of-activity
enhancement applied because Boone “produced child sexual abuse
material on at least two separate occasions,” including
“images/videos of the victim masturbating him and of him
‘slapping’ his penis on the victim’s vagina.”
With a criminal history category of I and a total offense level
of 43—the highest total offense level in the Sentencing Guidelines’
sentencing table—Boone’s advisory guidelines range was life
imprisonment. However, Boone’s statutory maximum sentence
for the production offense in Count 1 was 30 years, see 18 U.S.C.
videos.” Because this difference is immaterial to the disposition of this case,
we will proceed with the assumption that there were two videos featuring
Boone’s sexual abuse of his daughter on his device.
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§ 2251(e), and for the distribution and possession offenses in
Counts 2 and 3 was 20 years each, see id. § 2252A(b)(1), (b)(2).
Because the statutory maximum sentence for each count was less
than the original advisory guidelines sentence of life, U.S.S.G.
§ 5G1.2 provided that the sentences “shall run consecutively,”
which in turn yielded a total advisory guidelines sentence of 840
months.3
As special sentencing considerations, the PSR identified:
(1) Boone’s active military service, (2) his reported recurring
nightmares and other issues stemming from his service in
Afghanistan, (3) Boone’s various traumatic childhood experiences,
including years of undisclosed sexual abuse by a male relative,
3 “Because the statutory maximum on each count was less than the advisory
guidelines range of life imprisonment, the statutory maximum on each Count
became the advisory guidelines range for each Count.” United States v. Sarras,
575 F.3d 1191, 1208 (11th Cir. 2009); see also United States v. Isaac, 987 F.3d 980,
986 (11th Cir. 2021); United States v. Kirby, 938 F.3d 1254, 1257-58 (11th Cir.
2019); U.S.S.G. § 5G1.2 cmt. 3(B) (“The defendant’s guideline range on the
Sentencing Table may be affected or restricted by a statutorily authorized
maximum sentence or a statutorily required minimum sentence not only in a
single-count case, see § 5G1.1, but also in a multiple-count case.”). And
§ 5G1.2(d) provides that “[i]f the sentence imposed on the count carrying the
highest statutory maximum is less than the total punishment, then the
sentence imposed on one or more of the other counts shall run consecutively,
but only to the extent necessary to produce a combined sentence equal to the
total punishment.” U.S.S.G. § 5G1.2(d). Therefore, in this case, § 5G1.2(d)
“called for the sentences for multiple counts to run consecutively as the
advisory guidelines sentence.” Sarras, 575 F.3d at 1209.
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(4) the absence of any prior criminal history, and (5) the fact that
the victim was Boone’s four-year-old daughter.
Boone filed no objections to the PSR.
C. Sentencing
During the sentencing hearing, Boone affirmatively stated
that (1) he was subject to the pattern-of-activity enhancement
pursuant to U.S.S.G. § 4B1.5(b)(1), and (2) the PSR correctly
calculated his guidelines range at 840 months given his total offense
level of 43 and the combined statutory maximum sentences for
each count of his conviction.
Additionally, in his sentencing memorandum, Boone
acknowledged that the pattern-of-activity enhancement was
applied based on the videos he had recorded “over a two-day span
involving the same victim” and advised that his “[c]ounsel did not
object to the addition of these points because she is aware of case
law that supports the addition of the points . . . .” Boone asked the
district court to consider that his conduct overall appeared limited
to a short period of time, that only one victim was involved, and
that the sexual contact depicted in the videos did not include
penetration. Boone also urged the district court to factor into his
sentence his lack of any prior criminal history, his active-duty
military service, and the recurring nightmares he experienced
related to his service in Afghanistan. Boone concluded his
memorandum by asking the district court to impose a term that
was “less than the current guideline range of 840 months.”
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At the sentencing hearing, Boone raised no objections to the
PSR. Defense counsel advised the district court that she had
“researched the case law” and “[a]ll the pattern points apply in this
case.” In mitigation, defense counsel emphasized that Boone had
no prior criminal record, was active-duty military for five years
prior to committing the offense, and had served in Afghanistan.
Defense counsel also asked the district court, again, to consider that
Boone made the videos underlying his production offense in Count
1 “over a two-day timeframe” and that they were relatively short
videos.
In response to the district court’s query, the Government
confirmed that Boone’s contact with the victim in the penis-
slapping video would constitute a capital sexual battery under
Florida law, subjecting Boone to a life sentence if the crime was
prosecuted in state court. The district court noted further that,
pursuant to 18 U.S.C. § 2241, Boone’s crime would have carried a
mandatory minimum sentence of 30 years to life if it had occurred
on a military base. Boone agreed with the Government and the
district court’s assessment as to the sentences that would be
applicable to his crime under Florida law and § 2241.
After hearing the parties’ arguments, the district court
expressly reviewed the relevant § 3553(a) sentencing factors. The
district court observed that to fashion an appropriate sentence, it
was required to consider the nature and circumstances of Boone’s
offenses and his history and characteristics, among other factors.
The court also cited the need for the sentence to reflect the severity
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of the offenses and promote respect for the law, explaining that was
why it had asked about Florida law and 18 U.S.C. § 2241. Analyzing
those factors, the district court acknowledged that Boone had no
criminal history and was abused himself as a child, but the court
did not find those facts to mitigate the seriousness of Boone’s
offenses, which the court determined to be grave and depraved in
that they involved planning and recording the sexual abuse of his
own very young child.
Furthermore, the district court expressed its belief that
Boone was particularly dangerous because his conduct was
uncharacteristic, such that no one would be on the lookout for it.
Countering defense counsel’s argument that the offenses took
place over a relatively short period of time, the district court found
it significant that Boone orchestrated and chatted about the sexual
abuse of his daughter, engaged in “multiple incidents” of abuse
“over the course of at least a couple of days,” and by every
indication would have continued and escalated the abuse if not for
the swift response by law enforcement.
The district court also found that Boone’s membership in
the military was not a mitigator but rather an aggravator, because
it meant Boone was in a position of honor and trust in the
community that enabled him to commit the abuse more easily and
without being discovered. Noting the need to avoid unwarranted
sentence disparities, the district court stressed that it had imposed
life sentences in less egregious cases and that Boone’s conduct
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10 Opinion of the Court 22-11153
“ranks at the top of the list in terms of egregious and heinous
because it involve[d] [his] own child and at such a young age.”
Ultimately, after weighing all the relevant considerations,
the district court imposed an 840-month sentence, comprised of
consecutive terms of 360 months on Count 1 and 240 months each
on Counts 2 and 3, followed by a lifetime of supervised release.
II. DISCUSSION
On appeal, Boone argues the district court erred at
sentencing by (1) applying U.S.S.G. § 4B1.5(b)(1)’s pattern-of-
activity enhancement based on two or three images all involving
the same victim at around the same time and (2) considering his
military service as an aggravating rather than a mitigating factor in
determining his sentence.
A. Standard of Review
We use a two-step process to review the reasonableness of a
sentence imposed by the district court. United States v. Cubero, 754
F.3d 888, 892 (11th Cir. 2014). First, we determine whether the
sentence is procedurally sound. Id. Assuming it is, we then
examine whether the sentence is substantively reasonable given
the totality of the circumstances and the sentencing factors set out
in 18 U.S.C. § 3553(a).4 Id. At both steps of the process, the party
4 The § 3553(a) factors include: (1) the nature and circumstances of the offense
and the history and characteristics of the defendant, (2) the need to reflect the
seriousness of the offense, to promote respect for the law, and to provide just
punishment for the offense, (3) the need for deterrence, (4) the need to protect
the public, (5) the need to provide the defendant with needed education or
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22-11153 Opinion of the Court 11
challenging the sentence bears the burden of showing it is
unreasonable. United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir.
2008).
Where a defendant fails to object at sentencing, as occurred
here, we review procedural reasonableness for plain error. See
United States v. Grady, 18 F.4th 1275, 1293 (11th Cir. 2021). To
prevail on plain error review, the defendant must show an error
with respect to his sentence that is “plain—that is to say, clear or
obvious” and that affects his “substantial rights.” Rosales-Mireles v.
United States, 585 U.S. 129, 134 (2018) (quotation marks omitted).
An error is plain if “the explicit language of a statute or rule or
precedent from the Supreme Court or this Court directly resolves
the issue” and establishes that an error has occurred. United States
v. Innocent, 977 F.3d 1077, 1081 (11th Cir. 2020) (quotation marks
omitted and alteration adopted). An error affects the defendant’s
substantial rights if there is a “reasonable probability that, but for
the error, the outcome” of the sentencing proceeding would have
been different. Rosales-Mireles, 585 U.S. at 134-35 (quotation marks
omitted). If the defendant carries his burden, we have “discretion
to correct the forfeited error if the error seriously affects the
fairness, integrity or public reputation of judicial proceedings.” Id.
at 135 (quotation marks omitted).
vocational training or medical care, (6) the kinds of sentences available, (7) the
sentencing guidelines range, (8) pertinent policy statements of the sentencing
commission, (9) the need to avoid unwarranted sentencing disparities, and
(10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).
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As for the substantive reasonableness of a sentence, we
apply a “deferential abuse of discretion standard.” United States v.
Early, 686 F.3d 1219, 1221 (11th Cir. 2012) (citing Gall v. United
States, 552 U.S. 38 (2007)). We may vacate the sentence only if we
are left with the definite and firm conviction that the district court
committed a clear error of judgment in weighing the § 3553(a)
factors to arrive at an unreasonable sentence based on the facts of
the case. United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010)
(en banc).
B. Invited Error
As a preliminary matter, Boone’s arguments related to the
five-level pattern-of-activity enhancement in U.S.S.G. § 4B1.5(b)(1)
are precluded by the invited error doctrine, which is implicated
when a party induces the district court to make a decision that the
party later challenges on appeal as erroneous. Relevant here, the
invited error doctrine precludes appellate review of an argument
that a party “expressly disclaimed before the district court.”
Innocent, 977 F.3d at 1085. In Innocent, for example, this Court
applied the invited error doctrine to preclude review of the
defendant’s argument that he was not subject to a sentencing
enhancement under the Armed Career Criminal Act (“ACCA”)
where defense counsel represented during the sentencing hearing
that he had researched the issue and could not file a legal objection
to the ACCA enhancement. See id.
Like the defendant in Innocent, Boone here expressly
represented to the district court in his sentencing memorandum
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that the five-level pattern-of-activity enhancement under U.S.S.G.
§ 4B1.5(b)(1) applied to his case. At the sentencing hearing, defense
counsel explained that she had researched the case law and that the
enhancement applied based on the facts of Boone’s case. Thus, to
the extent the district court erred by applying § 4B1.5(b)(1), the
error was invited by Boone. See id. As such, Boone is precluded
from asserting such error on appeal.
C. Procedural Reasonableness
Moreover, as an independent and alternative ground for
affirming Boone’s 840-month sentence, we conclude that Boone
has not shown any procedural error in his sentence.
We will overturn a sentence on procedural grounds only if
the district court commits a “significant procedural error, such as
failing to calculate (or improperly calculating) the [g]uidelines
range, treating the [g]uidelines as mandatory, failing to consider
the § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence.” Pugh, 515 F.3d at 1190 (quoting Gall, 552 U.S. at 51). We
explain why no procedural error occurred here, much less plain
error.
In the district court, Boone conceded his 840-month
guidelines sentence was correctly calculated, and the sentence was
based on agreed-upon facts, including that Boone recorded the two
videos of himself sexually abusing his daughter over a two-day
period and “on at least two separate occasions.” There is no
indication that the district court treated the guidelines as
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mandatory, and the record reflects the court’s careful consideration
of the relevant § 3553(a) factors to arrive at the sentence it
determined was sufficient but not greater than necessary to
accomplish the objectives of sentencing under § 3553(a). The
district court provided a lengthy and considered explanation for the
sentence during the sentencing hearing.
Boone suggests that the district court committed procedural
error by (1) applying U.S.S.G. § 4B1.5(b)(1)’s five-level
enhancement based on images created of the same victim at
around the same time and (2) viewing Boone’s active-duty military
status as an aggravating rather than a mitigating factor in
determining his sentence. Again, because Boone did not object on
these grounds in the district court—indeed, he did not object to the
procedural reasonableness of his sentence on any ground and he
expressly agreed that his guidelines calculations were correct—
Boone can prevail in his appeal only by showing plain error. See
Rosales-Mireles, 585 U.S. at 134.5
Among other things, the plain error standard generally
requires clear statutory language or controlling precedent
establishing that an error has occurred. Innocent, 977 F.3d at 1081;
see also United States v. Olano, 507 U.S. 725, 734 (1993) (an error is
“plain” when it is clear or obvious). Boone does not cite, and the
Court has not found, a statute or controlling case establishing that
a sentencing court errs by applying the U.S.S.G. § 4B1.5(b)(1)
5 Boone acknowledges in his appellate brief that at sentencing he did not object
to the U.S.S.G. § 4B1.5(b)(1) pattern-of-activity enhancement.
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pattern-of-activity enhancement in the manner the district court
applied it here, or by considering a defendant’s military status to be
an aggravator rather than a mitigator in a case like this one, where
such status increases a defendant’s danger to society by placing him
in a position of trust and honor that enables him to avoid suspicion.
Even applying de novo review, Boone has shown no
procedural error. Indeed, as to § 4B1.5(b)(1), this Court has held
that the enhancement applies if the defendant engaged in
prohibited sexual conduct on at least two separate occasions,
regardless of whether the crimes were committed against the same
victim or different victims. See United States v. Fox, 926 F.3d 1275,
1280-81 (11th Cir. 2019); see also United States v. Isaac, 987 F.3d 980,
994 (11th Cir. 2021) (affirming application of the pattern-of-activity
enhancement where the defendant produced child pornography of
the same victim on February 22 and February 24); U.S.S.G. § 4B1.5
cmt. n.4(B)(i) (providing that a defendant has engaged in “a pattern
of activity” if the defendant has “on at least two separate occasions”
participated in prohibited sexual conduct with a minor).
This Court explained in Fox that:
The plain meaning of “separate occasions” does not
require two events that are unrelated. It requires only
events that are independent and distinguishable from
each other. Multiple, distinct instances of abuse—
whether ongoing, related, or random—meet the
enhancement under § 4B1.5(b)(1).
Fox, 926 F.3d at 1280; see also Isaac, 987 F.3d at 994 (concluding a
defendant “engaged in a pattern” where the “production of child
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pornography occurred on two different days and was not
continuous”).
As defense counsel acknowledged at the sentencing hearing,
that requirement was met here by the fifteen images and two
videos showing Boone commit multiple, discrete instances of
sexual abuse against his four-year-old daughter. Moreover, Boone
has never disputed that the two videos found on his personal
electronic device were recorded over a period of two days, which
belies his claim that the images and videos were all part of “one
incident.”
Boone argues that only the three images he sent to the OCE
via Kik Messenger on October 1, 2021 can support the
enhancement. Boone points out that in these three images he and
his daughter were wearing the same distinctive clothing and were
in the same room, indicating they were taken “within a very short
time span.”
But in calculating a defendant’s offense level, the district
court must consider all relevant conduct, which would include all
the images and videos found on Boone’s personal electronic
device, not just the three images he sent to the OCE. See U.S.S.G.
§ 1B1.3(a). Further, the PSR specifically cited the two videos Boone
agreed were recorded over two days as the basis for the
§ 4B1.5(b)(1) enhancement.
Given our binding precedent in Fox and Isaac and the
guidance in the Guidelines commentary—all of which indicate that
only “two separate occasions” of prohibited sexual conduct are
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required for a pattern of activity—Boone cannot show the district
court erred, much less plainly erred, in applying § 4B1.5(b)(1)’s five-
level enhancement.
Regarding Boone’s military service, Boone also has not
cited, and this Court has not found, a statute or controlling case
law clearly establishing that such service must always—even in a
case like this one where a defendant’s crime involves a serious
abuse of the authority and trust generally conferred by society on
military personnel—be a mitigator rather than an aggravator.
In short, there is no procedural basis upon which to overturn
Boone’s 840-month sentence. Boone cannot establish error in the
district court’s calculation of his advisory guidelines sentence, and
the record reflects that the district court carefully considered the
relevant § 3553(a) factors, including Boone’s military service,
selected a sentence based on facts that were agreed upon by the
parties, and explained the sentence in detail at Boone’s sentencing.
There is no procedural error that warrants disturbing the district
court’s exercise of its discretion here.
D. Substantive Reasonableness
Boone also contends his 840-month sentence is
substantively unreasonable.
The substantive reasonableness of a defendant’s sentence is
measured based on the “totality of the facts and circumstances”
considering the § 3553(a) factors. See Irey, 612 F.3d at 1189. On
substantive reasonableness review, we will vacate a sentence only
if we are left with the “definite and firm conviction that the district
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court committed a clear error of judgment” in weighing those
factors and applying them to the facts and circumstances of the
case. Id. at 1190 (quoting Pugh, 515 F.3d at 1191). Such an error
may occur if the district court fails to consider relevant factors,
gives significant weight to an improper or irrelevant factor, or
weighs the factors unreasonably. Id. at 1189. However, this Court
has emphasized that the “decision about how much weight to
assign a particular sentencing factor is committed to the sound
discretion of the district court.” United States v. Rosales-Bruno, 789
F.3d 1249, 1254 (11th Cir. 2015) (quotation marks omitted).
Applying this standard, we find no basis upon which to
overturn Boone’s sentence as substantively unreasonable. As an
initial matter, we note that the sentence is on par with the advisory
guidelines sentence of 840 months’ imprisonment. “Although we
do not automatically presume a sentence within the guidelines
range is reasonable, we ordinarily . . . expect [such] a sentence . . .
to be reasonable.” United States v. Hunt, 526 F.3d 739, 746 (11th Cir.
2008) (quotation marks omitted). And that is the case here.
Boone argues that his sentence is nevertheless unreasonable,
primarily on the ground that the sentence is so long he likely will
not survive it. According to Boone, the sentence is thus a “cruel
and excessive” example of the general trend in this country of
excessively punishing and inhumanely “warehousing” criminal
defendants rather than rehabilitating them. But we have upheld as
reasonable equally lengthy sentences in cases involving child sex
crimes based on the nature of the offense. See United States v. Sarras,
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575 F.3d 1191, 1220-21 (11th Cir. 2009) (affirming a total sentence
of 1,200 months and observing that “[c]hild sex crimes are among
the most egregious and despicable of societal and criminal offenses,
and courts have upheld lengthy sentences in these cases as
substantively reasonable”). Indeed, as the Government points out,
we have “upheld time and again sentences that will outlast a child
pornographer’s life.” Issac, 987 F.3d at 996 (affirming as
substantively reasonable a 960-month sentence). Given the nature
of Boone’s offense—specifically, the fact that it involved planning
and chatting about, engaging in, and recording the sexual abuse of
his four-year-old child—the fact that Boone is not likely to outlive
his sentence does not mean the sentence was substantively
unreasonable.
Boone also argues that 327 months—the sentence the
district court indicated it would have imposed if U.S.S.G.
§ 4B1.5(b)(1) did not apply—is “more than sufficient to meet all
goals of sentencing.” Again, as explained above, the district court
did not err in applying the § 4B1.5(b)(1) enhancement.
Furthermore, Boone cannot prevail on a substantive
reasonableness challenge simply by showing that a lesser sentence
is more reasonable in his own judgment, or even that it might be
more reasonable to another judge. See Irey, 612 F.3d at 1191 (“A
district court’s sentence need not be the most appropriate one, it
need only be a reasonable one.”). Instead, Boone must show that
the sentence imposed by the district court “lies outside the range
of reasonable sentences dictated by the facts of the case” and the
relevant sentencing factors. Id. at 1190 (quotation marks omitted).
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20 Opinion of the Court 22-11153
Boone’s argument that a lesser sentence would, in his opinion, be
more appropriate does not suffice.
Finally, Boone suggests the district court arrived at a
substantively unreasonable sentence by viewing his military
service as an aggravator rather than a mitigator. This Court has
held that it is within the district court’s discretion to find that a
factor the defendant argues to be mitigating is instead aggravating.
See United States v. Butler, 39 F.4th 1349, 1356 (11th Cir. 2022)
(holding that the district court acted within its discretion when it
considered certain factors “to be either aggravating or irrelevant
rather than mitigating evidence warranting a lesser sentence”). In
this case specifically, the district court acted within its discretion
when it found that Boone’s military service placed him in a position
of trust and authority in the community, making him more
dangerous given the violation of trust and abuse of authority
inherent in his offense.
The record reflects that at sentencing the district court
conducted an individualized assessment of the facts, balanced the
competing considerations—specifically, weighing the nature and
circumstances of Boone’s offense, the need to impose respect for
the law, and deterrence considerations, among other factors—and
ultimately determined that a guidelines sentence of 840 months for
Boone’s multiple child pornography counts was necessary and
warranted by the specific facts of this case. We cannot say the court
committed a clear error of judgment in its decision, or that the 840-
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22-11153 Opinion of the Court 21
month sentence is outside the range of reasonable sentences given
the facts and circumstances of the case.
III. CONCLUSION
For the foregoing reasons, we affirm Boone’s total 840-
month sentence.
AFFIRMED.
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