UNITED STATES OF AMERICA, Plаintiff-Appellee, versus TRAVIS M. BUTLER, Defendant-Appellant.
No. 21-10659
United States Court of Appeals For the Eleventh Circuit
July 14, 2022
[PUBLISH]
Appeal from the United States District Court for the Northern District of Florida
D.C. Docket No. 3:19-cr-00156-MCR-1
Before WILSON, BRANCH, and TJOFLAT, Circuit Judges.
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 unreasonable because the district court failed to consider his mitigation arguments, considered improper factors, and unreasonably weighed the
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 remaining counts being dismissed. Count One charged Butler with enticement of a minor to engage in sexual activity, in violation of
Butler‘s presentence investigation report (PSI) described the offense conduct as follows. In September 2019, the Pensacola Police Department (PPD) rеceived two Cybertips from the National Center for Missing and Exploited Children following its determination that an IP address, which was used to upload child pornography to Facebook Messenger, was geo-located to Pensacola, Florida. Both of the Cybertips referenced Facebook accounts used by Butler and the victim.
The first Cybertip reported an incident that occurred in June 2019. The repоrt stated that the victim uploaded to Facebook Messenger, on three separate occasions, images of what appeared to be child pornography. The Facebook account that received the messages was used by Butler. PPD reviewed the pictures, which included 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 conversations 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 account, officers discovered that Butler was a convicted sexual offender 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
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
Regarding Butler‘s criminal history, the PSI initially assigned Butler a criminal history category of IV based on eight criminal history points. Five of these points were awarded for three controlled substance convictions from 2006, 2012, and 2016. Butler‘s three remaining criminаl history points stem from his 2006 two-count conviction for lewd and lascivious battery and contributing to the delinquency of a child by impregnating a child under sixteen, in violation of Florida law. The PSI described the factual basis for the latter 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 [Butler‘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 [Butler] “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, 2002, DNA test results revealed thаt [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
Because Butler qualified as a repeat and dangerous sex offender against minors, the PSI increased his criminal history categоry from IV to V pursuant to
In addition to the offense conduct and Butler‘s criminal history, the PSI contained personal and family information about Butler. 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.
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 individuals are unlikely to re-offend after the age of 60. He also asserted 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 assertеd 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 argued that he had a low likelihood of reoffending if put under supervision.
The Government, in turn, argued for a total sentence at the upper end of the Guidelines range or above. It argued that the nature and circumstances of the offense warranted a severe total sentence 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 encounter.” It also highlighted Butler‘s two prior criminal sexual acts with minors and his prior convictions for drug trafficking, aggravated 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
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
Regarding Butler‘s criminal history, the district court found that not all of Butler‘s prior criminal sexual conduct had been accounted 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 exploitative conduct against children,” and that none of his past sentences 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 opportunities 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 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 thе conduct that I‘m considering in imposing this sentence. . . . 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 community but also to serve as a deterrent to other individuals.
The court clarified that it was sentencing Butler to life imprisonment on Count One and 50 years’ imprisonment on Count Two, to run concurrently. The court later filed а statement of reasons which stated that the court had adopted the PSI without change. The statement of reasons noted many of the same considerations 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 suрported a conviction under
II.
This is Butler‘s appeal of the substantive reasonableness of his sentence.
We review the substantive reasonableness of a sentence for an abuse of
A district court imposes a substantively unreasonable sentence, 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 factоr, 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
Under
While sentenсing 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
Sentences within the Guidelines range are afforded a presumption 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 sentence is appropriate in a particular case with sufficient justifications.” Id. at 46.
Upward variances are imposed based upon the
A district court‘s failure to discuss mitigating evidence does not indicate that the court “erroneously ‘ignored’ or failed to consider th[e] evidence.” Amedeo, 487 F.3d at 833. Rather, a district court‘s acknowledgment that it has considered the
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 sentence: (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 judgment by weighing the sentencing factors unreasonably. Irey, 612 F.3d at 1189. Butler has failed to show that the district court committed any such error.
Regarding the first way a sentencing court can abuse its discretion, 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 effеct by his prior convictions, sexual offender registration requirement, or the 115 months he served in the federal 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 Butler 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 certainly within the court‘s discretion to weigh them heavily. See id.
It is also noteworthy that defense counsel suggested at sentencing that the need to protect the community is the most important factor to be considered: “That‘s what I see as the most important factor 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 agreement 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
IV.
To conclude, the district court properly calculated the applicable Guidelines range but found that the resulting range did not adequately reflect Butler‘s criminal history or the need to protect 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 reflects the