USA v. James Allen Shook

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11973
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES ALLEN SHOOK,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:20-cr-00016-BJD-MCR-1
____________________
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2 Opinion of the Court 21-11973
Before J ILL PRYOR , BRANCH, and MARCUS, Circuit Judges.
PER CURIAM:
James Shook appeals his above-guideline 240-month sen-
tence for attempting to entice a minor to engage in sexual activity,
in violation of 18 U.S.C. §§ 2422(b), 2426. On appeal, he argues that
this sentence is substantively unreasonable because the district
court’s justifications for varying upward by 120 months were insuf-
ficiently compelling, and it clearly erred in weighing the 18 U.S.C.
§ 3553(a) factors. After thorough review, we affirm.
In determining whether a sentence is substantively reasona-
ble, we review for abuse of discretion, regardless of whether the
sentence falls inside or outside the Guidelines range.
Gall v. United
States, 552 U.S. 38, 51 (2007).
In reviewing the “‘substantive reasonableness of [a] sentence
imposed under an abuse-of-discretion standard,’” we consider the
“‘totality of the circumstances.’”
United States v. Pugh, 515 F.3d
1179, 1190 (11th Cir. 2008) (quoting
Gall, 552 U.S. at 51). The dis-
trict court must impose a sentence “sufficient, but not greater than
necessary to comply with the purposes” listed in 18 U.S.C. §
3553(a).1 The court must consider all of the § 3553(a) factors, but
1 The § 3553(a) factors include: (1) the nature and circumstances of the offense
and the history and characteristics of the defendant; (2) the need for the sen-
tence imposed 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 the
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21-11973 Opinion of the Court 3
it may give greater weight to some factors over others -- a decision
that is within its sound discretion.
United States v. Rosales-Bruno,
789 F.3d 1249, 1254 (11th Cir. 2015). District courts have consider-
able discretion in weighing the § 3553(a) factors and deciding the
extent to which they justify a variance.
United States v. Croteau,
819 F.3d 1293, 1309 (11th Cir. 2016).
Still, a major variance requires “a more significant justifica-
tion than a minor one -- the requirement is that the justification be
sufficiently compelling to support the degree of the variance.”
United States v. Irey, 612 F.3d 1160, 1196 (11th Cir. 2010) (
en banc)
(quotations omitted). A sentence also may be substantively unrea-
sonable when a court unjustifiably relies on any single § 3553(a)
factor, fails to consider pertinent § 3553(a) factors, bases the sen-
tence on impermissible factors, or selects the sentence arbitrarily.
Pugh, 515 F.3d at 1191–92. A sentence that suffers from one of
these symptoms is not
per se unreasonable; rather, we must exam-
ine the totality of the circumstances to determine the sentence’s
reasonableness.
Id. at 1192. “[W]e will not second guess the
weight (or lack thereof) that the [court] accorded to a given [§
3553(a)] factor . . . as long as the sentence ultimately imposed is
sentence imposed to afford adequate deterrence; (4) the need to protect the
public; (5) the need to provide the defendant with educational or vocational
training or medical care; (6) the kinds of sentences available; (7) the Sentencing
Guidelines range; (8) the pertinent policy statements of the Sentencing Com-
mission; (9) the need to avoid unwanted sentencing disparities; and (10) the
need to provide restitution to victims. 18 U.S.C. § 3553(a).
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4 Opinion of the Court 21-11973
reasonable in light of all the circumstances presented.”
United
States v. Snipes, 611 F.3d 855, 872 (11th Cir. 2010) (quotation, alter-
ation and emphasis omitted). We will 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 by arriving at a sentence that lies outside the range
of reasonable sentences dictated by the facts of the case.”
Irey, 612
F.3d at 1190 (quotations omitted).
District courts need not explicitly address “each of the
§ 3553(a) factors or all of the mitigating evidence.”
United States v.
Taylor, 997 F.3d 1348, 1354 (11th Cir. 2021). Instead, an acknowl-
edgment by the court that it considered the § 3553(a) factors and
the parties’ arguments is sufficient.
Id. at 1354-55.
The party challenging the sentence bears the burden of
demonstrating that the sentence is unreasonable in light of the rec-
ord, the factors listed in 18 U.S.C. § 3553(a), and the substantial def-
erence afforded sentencing courts.
Rosales-Bruno, 789 F.3d at
1256. A sentence imposed well below the statutory maximum pen-
alty is an indicator of a reasonable sentence.
See United States v.
Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).
Here, Shook has not shown that his 240-month sentence for
attempting to entice a minor to engage in sexual activity is substan-
tively unreasonable. In exercising its considerable discretion, the
district court provided several justifications for its 120-month up-
ward variance -- the seriousness of the offense, Shook’s history, de-
terrence, and protecting the public. As the record reflects, Shook
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21-11973 Opinion of the Court 5
admitted to a long history of inappropriate sexual activity toward
children, including many, possibly hundreds of instances of expos-
ing his genitals to children and masturbating in front of them, in
addition to possessing images of child pornography. Some of these
crimes were never formally prosecuted, and many were too old to
be included in his criminal history. Moreover, past counseling, pro-
bation, and incarceration had not curbed his acting on his sexual
desire toward children; to the contrary, his crimes had escalated
over time, from exhibitionism to attempting to engage minors in
sexual acts. On this record, we cannot say that the district court
abused its discretion in focusing on the need to protect the public
and provide deterrence in justifying its upward variance.
As for Shook’s argument that the court did not sufficiently
consider what his age will be at the time of his release -- 68 years
old -- we disagree. For starters, Shook’s expert did not establish
that he would have no risk of recidivism after age 60. Further, the
expert admitted that based on Shook’s history, a risk-assessment
analysis would show him to have an elevated risk of recidivism. In
any event, the district court expressly considered Shook’s mitigat-
ing arguments, including his expert’s opinion that he was amenable
to treatment, and the court’s rejection of these factors in light of
§ 3553(a) was more than sufficient. In addition, Shook’s 240-month
sentence is well below his maximum of life, which indicates rea-
sonableness. Accordingly, we affirm.
AFFIRMED.
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