USA v. Trevor Glen Lang

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11363
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TREVOR GLEN LANG,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:22-cr-00156-WWB-LHP-1
____________________
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2 Opinion of the Court 23-11363
Before R OSENBAUM, G RANT , and ANDERSON , Circuit Judges.
PER CURIAM:
Trevor Glen Lang appeals his total sentence of 360 months’
imprisonment with 30 years of supervised release for receipt of
child pornography. Lang argues that the district court procedurally
erred when it did not adequately explain why it imposed a 33-
month upward variance. Lang also argues that his sentence is sub-
stantively unreasonable because the court erred in its weighing of
his criminal history in its sentence. Additionally, Lang argues that
the court violated his right to due process when it stated at his sen-
tencing hearing that he must comply with the standard conditions
of supervised release but only specified those standards in its writ-
ten judgment.
I.
We review the reasonableness of a sentence for abuse of dis-
cretion, which includes both substantive and procedural reasona-
bleness. United States v. Williams, 526 F.3d 1312, 1321-22 (11th Cir.
2008). The party challenging a sentence bears the burden of show-
ing that the sentence is unreasonable. Id. at 1322. Where a defend-
ant challenges a sentence as procedurally unreasonable based on
the adequacy of the district court’s explanation, we review de novo,1
1 Although there was a knowing and voluntary sentence appeal waiver, this
claim falls under an exception because the 360-month sentence was above the
Guideline range.
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23-11363 Opinion of the Court 3
even in the absence of a timely objection at sentencing. United
States v. Oudomsine, 57 F.4th 1262, 1265 (11th Cir. 2023).
While a district court must consider the 18 U.S.C. § 3553(a)
factors in determining a sentence, it is not required to state in its
explanation that it has evaluated each factor individually. United
States v. Ortiz-Delgado, 451 F.3d 752, 758 (11th Cir. 2006). An ac-
knowledgment by the district court that it has considered the 18
U.S.C. § 3553(a) factors is sufficient. United States v. Turner, 474 F.3d
1265, 1281 (11th Cir. 2007). A court selecting a sentence outside
the guidelines must have a justification “sufficiently compelling to
support the degree of the variance.” Gall v. United States, 552 U.S.
38, 50 (2007). The justification for a variance must also be ade-
quately explained to “allow for meaningful appellate review and to
promote the perception of fair sentencing.” Id. In general, the fur-
ther a sentence falls outside the guideline range, the more compel-
ling the court’s explanation must be. Id. at 47, 50. Ultimately, the
court must explain the sentence with enough detail to satisfy the
appellate court that it has considered the arguments of the parties
and has a reasoned basis for its decision. Rita v. United States, 551
U.S. 338, 356 (2007).
On substantive reasonableness review, 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 18 U.S.C. § 3553(a) factors to arrive at an unreasona-
ble sentence based on the facts of the case. United States v. Irey, 612
F.3d 1160, 1190 (11th Cir. 2010) (en banc). A district court abuses its
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4 Opinion of the Court 23-11363
discretion when it (1) fails to consider 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 by
balancing the proper factors unreasonably. Id. at 1189. We con-
sider whether a sentence is substantively unreasonable under the
totality of the circumstances and in light of the 18 U.S.C. § 3553(a)
factors. Williams, 526 F.3d at 1322. The district court is required
to evaluate all of the § 3553(a) factors, but the weight given to each
factor is within the sound discretion of the district court. United
States v. Ramirez-Gonzalez, 755 F.3d 1267, 1272-73 (11th Cir. 2014).
The district court also does not have to give all of the factors equal
weight and is given discretion to attach great weight to one factor
over another. United States v. Rosales-Bruno, 789 F.3d 1249, 1254
(11th Cir. 2015). The district court’s imposition of a sentence well
below the statutory maximum penalty is an indicator of reasona-
bleness. United States v. Croteau, 819 F.3d 1293, 1310 (11th Cir.
2016).
The factors the district court is to consider include the na-
ture and circumstances of the offense and the history and charac-
teristics of the defendant; the need for the sentence imposed to re-
flect the seriousness of the offense, to promote respect for the law,
and to provide just punishment for the offense as well as to afford
specific and general deterrence; and the need to avoid unwarranted
sentence disparities among defendants with similar records who
have been found guilty of similar conduct. 18 U.S.C.
§ 3553(a). While the district court should consider and properly
calculate the advisory guidelines range, it is permitted to give
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23-11363 Opinion of the Court 5
greater weight to other 18 U.S.C. § 3553(a) factors. Rosales-Bruno,
789 F.3d at 1259. The district court may also “consider facts that
were taken into account when formulating the guideline range for
the sake of a variance.” United States v. Dougherty, 754 F.3d 1353,
1362 (11th Cir. 2014).
One of the purposes of the Guidelines is to provide certainty
and fairness in sentencing, “avoiding unwarranted sentencing dis-
parities among defendants with similar records who have been
found guilty of similar criminal conduct.” United States v. Docampo,
573 F.3d 1091, 1101 (11th Cir. 2009) (quotation marks omitted).
Although we have never stated what the defendant’s burden is in
these contexts, we have stated that the district court is required to
avoid the unwarranted disparities between similarly situated de-
fendants, indicating that the court should be aware of any potential
for this issue at sentencing. See id. at 1101-02.
Here, Lang’s sentence is not procedurally unreasonable be-
cause the court adequately explained the sentence imposed. The
court explicitly stated, in its sentencing, that it considered the 18
U.S.C. § 3553(a) factors, the PSI, the parties’ arguments, and writ-
ten filings. This is sufficient to demonstrate that it did consider all
those items. Turner, 474 F.3d at 1281. In explaining the sentence
and the 33-month upward variance, the court found that Lang’s
previous imprisonment had not deterred him from continuing his
criminal behavior and demonstrated that he did not respect the
law. The court noted that Lang was previously convicted for sim-
ilar conduct (including not only viewing child pornography but
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6 Opinion of the Court 23-11363
acting on those urges, including oral sex with an 8-year-old boy)
and that his four-year sentence for those offenses did not deter him
from reoffending. The court also clearly stated that Lang’s case
was not an easy case because of his mitigating factors such as his
mother’s abuse but found that those factors did not outweigh the
harm caused and the court’s need to protect children from Lang.
The court recognized the Guideline range (262 – 327 months),
posed the question of what was an adequate sentence to protect
the public, and carefully considered all of the circumstances. The
court concluded that the top end of the Guideline range was not
sufficient, but rather that some upward variance was warranted.
This explanation is sufficiently compelling and provides enough de-
tail that to show that the court considered Lang’s mitigating evi-
dence and arguments, and to show that the court sufficiently ex-
plained the sentence and the upward variance. Gall, 552 U.S. at 50;
Rita, 551 U.S. at 356. We note that the court varied upward 33
months (or 10%). We cannot conclude that the district court erred
with respect to its explanation for the sentence and the variance.
Additionally, Lang’s sentence is not substantively unreason-
able because, based on the totality of the circumstances, the court
properly weighed all 18 U.S.C. § 3553(a) factors. Williams, 526 F.3d
at 1322; Ramirez Gonzalez, 755 F.3d at 1272 73. The court is al-
lowed to consider Lang’s previous convictions for ten counts of
possession of child pornography and lewd and lascivious molesta-
tions of an eight-year-old boy even though they were considered in
his guidelines as reasoning for the upward variance. Dougherty, 754
F.3d at 1362. The court properly found that Lang’s history made
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23-11363 Opinion of the Court 7
him a danger to the public because he committed this offense while
he was on probation for a similar offense and that he had a history
of acting on his urges. Additionally, while Lang cites to cases from
this Court where defendants received lower or higher sentences
than he did, he did not point to any similarly situated defendant
who received a guidelines or below guidelines sentence. Docampo,
573 F.3d 1091, 1101. Finally, the maximum statutory sentence is
40 years and Lang received 30 years, which is 10 years below the
statutory maximum, which is a factor indicating that the sentence
was reasonable. Croteau, 819 F.3d at 1310. We cannot conclude
that the district court abused its discretion with respect to substan-
tive reasonableness.
II.
We review the validity of a sentence appeal waiver de novo.
United States v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). We
generally review the terms of supervised release for abuse of dis-
cretion. United States v. Nash, 438 F.3d 1302, 1304 (11th Cir.
2006). However, when a defendant fails to object to the conditions
of his supervised release at sentencing, we will review his argument
for plain error. United States v. Rodriguez, 75 F.4th 1231, 1246 n.5
(11th Cir. 2023). To prevail under plain error review, the defendant
must show: (1) there was an error (amounting to an abuse of dis-
cretion); (2) that was plain; (3) that affected his substantial rights;
and (4) that seriously affected the fairness of the judicial proceed-
ings. United States v. Oudomsine, 57 F.4th 1262, 1264 (11th Cir. 2023).
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8 Opinion of the Court 23-11363
A sentence appeal waiver will be enforced if it was made
knowingly and voluntarily. United States v. Bushert, 997 F.2d 1343,
1351 (11th Cir. 1993). A sentence appeal waiver “is not an absolute
bar to appellate review” and review may be available, despite a valid
appeal waiver, when the defendant was “sentenced entirely at the
whim of the district court,” above the statutory maximum, or
based on a constitutionally impermissible factor. Johnson, 541 F.3d
at 1068 (quotation marks omitted). An enforceable sentence appeal
waiver bars challenges to conditions of supervised release. United
States v. Cordero, 7 F.4th 1058, 1067 n.10 (11th Cir. 2021).
A district court must pronounce at the defendant’s sentenc-
ing hearing any discretionary conditions of supervised release,
which is any condition of supervised release other than the manda-
tory conditions in 18 U.S.C. § 3583(d). United States v. Rodriguez, 75
F.4th 1231, 1246 (11th Cir. 2023). We held that a district court vio-
lated the defendant’s right to due process by failing to orally pro-
nounce discretionary conditions of supervised release at sentenc-
ing that were included in the written judgment. Id. at 1246-50. A
district court’s imposition of discretionary conditions of super-
vised release without announcing them at the sentencing hearing
violates a defendant’s due process right to notice and an oppor-
tunity to object to the conditions. Id. at 1246-49.
Here, the appeal waiver bars Lang’s claim that the court de-
nied him due process when the court did not list out at his sentenc-
ing the “standard conditions” it was imposing during his supervised
release. Lang’s appeal waiver explicitly has three exceptions to
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23-11363 Opinion of the Court 9
which he may appeal, and this claim does not fit within those ex-
ceptions.
Even if Lang’s claim were not barred, his claim fails because
the court did not plainly err when at sentencing it told Lang that it
imposed “the mandatory and standard conditions adopted by the
court in the Middle District of Florida.” His claim is reviewed for
plain error because he did not object to his conditions of his super-
vised release at his sentencing hearing. Rodriguez, 75 F.4th at 1246
n.5. Lang had notice that the court was imposing the standard con-
ditions and had the opportunity to object at his sentencing to ques-
tion what those standards were. Id. at 1246-49. Moreover, the
standard conditions that the district court imposed here came di-
rectly from USSG §5D1.3(c)—a “written list detailing those condi-
tions”—which courts in that district routinely adopt at sentencing.
Thus, any error would not have been plain, because neither Rodri-
guez nor any other precedent of this Court directly invalidates the
district court’s approach at sentencing. Id. at 1241 (“[T]here can be
no plain error where there is no precedent from the Supreme Court
or this Court directly resolving it.”).
AFFIRMED.
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