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                                                                 [PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                               No. 15-14087
                           Non-Argument Calendar
                         ________________________

                   D.C. Docket No. 2:15-cr-14010-JEM-1



UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

JAY FREDRICK NAGEL,


                                                          Defendant-Appellant.

                         ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       ________________________

                             (September 1, 2016)

Before WILSON, JORDAN, and JULIE CARNES, Circuit Judges.

WILSON, Circuit Judge:
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      Jay Frederick Nagel appeals his 292-month sentence, imposed after he

pleaded guilty to three counts of enticement of a minor to engage in sexual activity

under 18 U.S.C. § 2422(b). On appeal, Nagel challenges the procedural and

substantive reasonableness of his sentence. However, after review of the record

and consideration of the parties’ briefs, we determine that Nagel’s sentence is both

procedurally and substantively sound. First, the district court’s decision not to

group Count One and Count Two of Nagel’s convictions was in accordance with

§ 3D1.2 of the United States Sentencing Guidelines (the Guidelines) because the

conduct underlying each count caused a separate and distinct harm to the victim.

Next, the court gave an adequate explanation for the within-guideline sentence it

imposed. Finally, the court acted within its discretion by selecting a substantively

reasonable sentence; it did not, as Nagel argues, impose a sentence greater than

necessary to comply with the statutory goals of sentencing. Accordingly, we

affirm the district court.

                                I. BACKGROUND

      A federal grand jury charged Nagel with three counts of using the internet to

persuade, induce, entice or coerce a minor to engage in illegal sexual activity in

violation of 18 U.S.C. § 2422(b). He was charged on Count One for his

interactions with C.R., a minor female, between December 1, 2013 and April 23,

2014. This conduct included using an alias to talk to C.R. for several weeks via

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Facebook, engaging in sexually explicit conversations and exchanging explicit

photographs, as well as convincing C.R. to meet him to engage in oral and vaginal

sex at the store where he was employed on at least one occasion. He was charged

on Count Two for his interactions with C.R. between April 27, 2014 and July 29,

2014, which culminated in oral and vaginal sex with C.R. at his residence. He was

charged on Count Three for his interactions with A.L., a different minor female,

between April 15, 2014 and August 15, 2014, during which time he, using an alias,

convinced A.L. to exchange sexually explicit pictures and engage in oral sex.

Nagel entered into a written plea agreement, in which he agreed to plead guilty to

all counts of the indictment.

      The probation office prepared a presentence investigative report (PSI),

which treated each of the three counts as its own separate and distinct group. For

Group One, which consisted of his conviction on Count One, Nagel received an

offense level of 34. Nagel was also assigned an offense level of 34 for both Group

Two, which consisted of the conviction on Count Two, and Group Three, which

consisted of the conviction on Count Three. Ultimately, based on these different

offenses and related adjustments, Nagel received a total offense level of 39. Based

on this offense level and Nagel’s criminal history category of II, the guideline

imprisonment range was 292 to 365 months. For each of the three counts, there

was a 10-year statutory minimum sentence and a statutory maximum life sentence.


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      Nagel objected to the PSI, arguing that Counts One and Two should be

grouped together because they involved the same victim. He asserted that, if they

were grouped together, the total offense level would be 38 and the guideline

imprisonment range would be 262 to 327 months. He renewed this objection at

sentencing and raised several arguments in favor of a lower sentence, including

that the court should consider the need to avoid unwarranted sentencing disparities

among defendants with similar conduct. The court received evidence such as

Nagel’s psychological evaluation and heard testimony from Nagel’s friend,

mother, father, and Nagel himself regarding Nagel’s character. It also considered

testimony presented by the government from Detective Jeremy Sheppard, who

worked on Nagel’s case. After hearing argument from both sides, the court

overruled Nagel’s objections and accepted the sentencing calculations in the PSI.

It imposed a sentence of 292 months’ imprisonment as to each count, to be served

concurrently. This appeal ensued.

                                  II. DISCUSSION

      Nagel challenges the sentence imposed by the district court, alleging the

district court erred by (1) refusing to group Counts One and Two of Nagel’s

convictions; (2) failing to sufficiently explain the sentence it selected; and (3)

exceeding the statutory goals of sentencing by imposing a sentence greater than

necessary to comply with those goals. We address each argument in turn.


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                                         A.

      We turn first to Nagel’s argument that the sentence imposed was

procedurally unreasonable because the court did not group Count One and Count

Two, which involved the same victim. Nagel acknowledges that, according to

commentary in the Guidelines, convictions for raping the same person on different

days are not to be grouped together. However, he contends that this non-grouping

provision does not apply to cases in which the defendant merely enticed a minor

individual to have consensual sex on more than one occasion. He argues that his

conduct is distinguishable from the rape governed by the commentary because he

did not force anyone to have sexual relations, pointing out that the Eleventh Circuit

has not yet addressed whether this provision applies to non-forcible sexual

misconduct.

      We review the district court’s decisions regarding grouping de novo, but

review its findings of fact only for clear error. United States v. McClendon, 

, 600 (11th Cir. 1999) (per curiam). We have not yet addressed in a

published opinion whether separate counts arising from distinct instances of non-

forcible sexual conduct with the same minor victim must be grouped for

sentencing purposes. However, we find it was proper for the district court to treat

Nagel’s two counts of enticement of a minor—which involved sexual misconduct

that occurred on different days—as not subject to grouping.


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       District courts are instructed “to group closely related convictions according

to the rules in § 3D1.2.” United States. v. Marseille, 

, 1254 (11th

Cir. 2004). Section 3D1.2 provides that, in general, “counts involving

substantially the same harm shall be grouped together into a single [g]roup.”

U.S.S.G. § 3D1.2. Counts involve substantially the same harm when, among other

things: (1) they “involve the same victim and the same act or transaction,” or

(2) they “involve the same victim and two or more acts or transactions connected

by a common criminal objective or constituting part of a common scheme or plan.”

§ 3D1.2(a), (b). This plain language in addition to the guidance provided in the

accompanying commentary makes clear that counts based on harm to the same

victim will not be grouped if the offenses occurred on different occasions and

involved “multiple, separate instances of fear and risk of harm.” See § 3D1.2(b)

cmt. n.4. 1 In addition, according to example 5 of Application Note 4 in the

commentary, counts are not grouped together if a “defendant is convicted of . . .

raping the same person on different days.” § 3D1.2 cmt. n.4, ex. 5. These various

provisions are dispositive.

       Nagel was convicted of sexual misconduct with C.R. on different occasions.

He used Facebook to entice C.R. to have sexual relations with him during two

distinct periods of time, each of which resulted in a separate instance of oral sex

       1
         The commentary to the Guidelines is authoritative. See U.S.S.G. § 1B1.7; see also
Stinson v. United States, 

, 38, 

, 1915 (1993).
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and sexual intercourse, several weeks apart. Specifically, Count One charged

Nagel with enticing minor victim C.R. to engage in sexual activity between

December 2013 and April 2014, which culminated with Nagel having oral and

vaginal intercourse with C.R. on April 22, 2014, at the store where Nagel worked.

Count Two charged Nagel with enticing C.R. to engage in sexual activity between

April 27, 2014 and July 29, 2014, which ended with Nagel having oral and vaginal

intercourse with C.R. sometime in July 2014 at his residence.

      Each one of these sexual encounters with C.R.—who was unable to consent

due to her age—caused a separate harm, even though they occurred with the same

victim. See United States v. Bonner, 

, 524–25 (11th Cir. 1996)

(“[M]ultiple, separate instances of fear and risk of harm, not one composite harm,

occur when the defendant robs or rapes the same victim on different occasions.”);

see also United States v. Bivens, 

, 843 (6th Cir. 2016) (noting that, in

the context of “sex crimes committed by the same defendant against the same

victim over an extended period of time,” “each act usually amounts to a fresh harm

the victim must face anew”). Thus, they are not subject to grouping under §

3D1.2(a). And the counts were not part of a single course of conduct with a single

criminal objective, see § 3D1.2(b); instead, Nagel had two separate objectives, to

have sexual relations with C.R. two separate times.




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         Moreover, Nagel’s emphasis on the consensual nature of the relationship is

unpersuasive. Nothing precludes the non-grouping language in § 3D1.2 and its

accompanying commentary from applying to non-violent sexual offenses. As the

Second Circuit has held, “use of force is not a requirement for placing the same

crimes against the same person in separate groups. Crimes do not necessarily

‘involve substantially the same harm,’ which is the test for grouping under [§]

3D1.2, just because force is not used.” See United States v. Vasquez, 

,

77 (2d Cir. 2004); see also United States v. Wise, 

, 445–47 (5th Cir.

2006) (per curiam) (refusing to group counts for sexually explicit photographs of a

minor taken on different days); United States v. Kiel, 

, 822 (8th Cir.

2006); United States v. Big Medicine, 

, 997 (10th Cir.1995). Further,

example 5 of Application Note 4 broadly refers to “rap[e],” a comprehensive term

which can encompass non-violent sexual offenses. Given the cross-references in

the provisions to different forms of rape, it is likely that “the Sentencing

Commission’s use of more inclusive terminology in Example 5 was intentional,”

selected in order “to cover various forms of the crime.” See United States v. Von

Loh, 

, 712–14 (7th Cir. 2005) (finding that the exclusion under §

3D1.2 is not limited in coverage to forcible rape, but applies to statutory rape as

well).




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      Accordingly, in line with the plain language of the Guidelines and

accompanying commentary, we find it was not erroneous for the district court to

decline to group Nagel’s two counts of enticement of a minor under § 3D1.2. Even

though the counts involved the same minor victim and no force, the sexual

misconduct occurred on different days and involved separate instances of harm to

the victim.

                                           B.

      Nagel also argues that his sentence is procedurally unreasonable because the

court did not give sufficient reasons to justify the 292-month sentence. He alleges

that the court failed to state its reasons for imposing his sentence as required by 18

U.S.C. § 3553(c). He further asserts that the court’s explanation was particularly

inadequate when considering the factors in favor of a downward variance, which

include his age, his criminal history, and the fact that the guideline sentence was

heavily enhanced because of the nature of his crime. He also contends that several

circuits have held that a summary statement like the one given by the court is not

sufficient for appellate review.

      A sentence can be procedurally unreasonable if the district court errs by,

inter alia, “failing to consider the § 3553(a) factors, selecting a sentence based on

clearly erroneous facts, or failing to adequately explain the chosen sentence—

including an explanation for any deviation from the Guidelines range.” Gall v.


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United States, 

, 51, 

, 597 (2007). Considering the

requirements for procedural reasonableness, the Supreme Court has instructed:

             The sentencing judge should set forth enough to satisfy
             the appellate court that he has considered the parties’
             arguments and has a reasoned basis for exercising his
             own legal decision making authority. Nonetheless, when
             a judge decides simply to apply the Guidelines to a
             particular case, doing so will not necessarily require
             lengthy explanation.

Rita v. United States, 

, 356, 

, 2468 (2007) (citation

omitted).

      Here, the district court met these requirements. Before imposing the

sentence, the court stated that it took into account the PSI, Nagel’s psychological

evaluation, Nagel’s objection to the PSI, Nagel’s request for a downward variance,

the letters filed on Nagel’s behalf, the testimony presented at sentencing, the

statements of the parties, and the statutory factors set out in § 3553, indicating that

it gave adequate consideration to the parties’ arguments. See 

127 S. Ct.

at 2468; United States v. Sanchez, 

, 936 (11th Cir. 2009) (“In general,

the district court is not required to state on the record that it has explicitly

considered each of the § 3553(a) factors or to discuss each of the § 3553(a)

factors.” (internal quotation marks omitted)).

      And, after stating that it “had no doubt” that it could consider all of the §

3553(a) factors, the district court emphasized the severity of Nagle’s crimes,


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referring to them as “one of the most serious ones you can possibly have.” Even

though the court did not repeat Nagel’s arguments, it is clear from the record that

the court had a reasoned basis for imposing the sentence, as it found that other

countervailing factors, specifically the need to “provide sufficient punishment and

deterrence,” outweighed Nagel’s concerns. While Nagel relies on opinions from

other circuits to argue that more of an explanation was required, the district court’s

explanation sufficiently complies with precedents from the Supreme Court and this

circuit. See Rita, 551 U.S. at 

; 

.

That is to say, the record supports that the district court “consider[ed] the

defendant’s arguments at sentencing and state[d] that it [took] the § 3553(a) factors

into account.” See 

. Therefore, we find that the district

court’s explanation of the sentence it imposed was sufficient.

                                          C.

      Nagel finally argues that his 292-month sentence is substantively

unreasonable because it is beyond what was necessary to fulfill the statutory goals

of sentencing. Nagel also contends that his sentence violates the congressional

policy of proportionality behind the Guidelines because it is more severe than the

sentences received by many defendants who committed far more egregious acts.

       We review the reasonableness of a sentence under a deferential abuse-of-

discretion standard of review. United States v. Irey, 

, 1188–89 (11th


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Cir. 2010) (en banc). The district court must impose a sentence “sufficient, but not

greater than necessary to comply with the purposes” listed in §3553(a)(2), such as

the need to reflect the seriousness of the offense, promote respect for the law,

provide just punishment for the offense, deter criminal conduct and protect the

public from the defendant’s future criminal conduct. See 18 U.S.C. §3553(a)(2).

We will only vacate a sentence if we are convinced the sentence is outside the

reasonable range of sentences for a given case. See 

–90;

United States v. Frazier, 

, 1259 (11th Cir. 2004) (en banc).

      In light of the record and the § 3553 factors, Nagel’s sentence is

substantively reasonable. At the sentencing hearing, the district court noted that

the nature of Nagel’s crimes was extremely severe and specifically stated that it

selected a sentence it believed would “provide sufficient punishment and

deterrence.” The seriousness of the offense, the provision of just punishment, and

the need for deterrence are all § 3553(a) factors that support a sentence within the

guideline range. Nagel’s argument—that his sentence was unreasonable because

other defendants who have committed crimes more heinous than his own have

received lighter sentences—lacks merit because, even if we would have

determined a different sentence to be more appropriate, the district court’s imposed

sentence was within the reasonable range of sentences warranted by the facts. See

. The district court was entitled to give more weight to the


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harmful nature of Nagel’s offense and the need to deter such behavior than to the

factors Nagel presented, such as his age, immaturity, and the fact that different

defendants had received lower sentences. See United States v. Clay, 

,

743 (11th Cir. 2007) (the weight given to any § 3553(a) factor is “committed to the

sound discretion of the district court” (internal quotation mark omitted)).

      Additionally, the reasonableness of the sentence is supported by its position

at the lowest end of the applicable guideline range. See United States v. Hunt, 

, 746 (11th Cir. 2008) (commenting that the imposition of a sentence

within the advisory guidelines range is ordinarily expected to be reasonable). The

sentence is also significantly less than the applicable statutory maximum of life in

prison, which points strongly to reasonableness. See United States v. Gonzalez,

, 1324 (11th Cir. 2008) (per curiam) (noting that the reasonableness

of a sentence may be indicated where the sentence imposed is well below the

statutory maximum sentence). Given these factors and the deference afforded

district court decisions under abuse of discretion review, we find no error as to the

substantive reasonableness of Nagel’s sentence.

                                III. CONCLUSION

      Having considered the record on appeal and the parties’ arguments

contained in the briefs, we find no reversible error. Therefore, the district court is

hereby


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AFFIRMED.




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