Case: 14-15339   Date Filed: 07/16/2015   Page: 1 of 7


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-15339
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 6:14-cr-00134-PGB-KRS-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

EDWARD ALAN VADNEY,

                                                         Defendant-Appellant.

                      ________________________

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

                             (July 16, 2015)

Before HULL, ROSENBAUM, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Defendant Edward Vadney appeals his 204-month sentence for attempted

sexual enticement of a minor, in violation of 18 U.S.C. § 2422(b), which sentence

was imposed following his plea of guilty. On appeal, Defendant concedes that the

sentence imposed by the district court was within the appropriate advisory

Sentencing Guidelines range. Nonetheless, he argues that the district court

improperly considered and weighed certain facts in this case, which prompted the

court to then erroneously deny Defendant’s request for a downward variance.

After review, we affirm.

                                     I. Background

      The Presentence Investigation Report sets out the pertinent facts in this case.

Defendant posted an advertisement on the internet requesting young girls’

underwear. An undercover FBI agent responded, posing as the father of a six-year-

old and a ten-year-old daughter. During their conversation, the undercover agent

and Defendant agreed that the father would permit Defendant to engage in sexual

intercourse with the girls, and the two men agreed to meet the next morning. In an

exchange of emails and phone calls the next morning, Defendant and the

undercover agent confirmed that they would meet in a restaurant parking lot and

then travel to the fictional children’s home. When Defendant arrived at the

restaurant, the FBI arrested him.




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      In a post-Miranda interview with the FBI, Defendant acknowledged that he

had traveled to the restaurant parking lot to meet with the father and to have sex

with the father’s six and ten-year-old daughters, but he explained that the father

was “cool” with the idea. Defendant also admitted that he had been sexually

interested in children since he was twelve, when he had sexually touched an eight-

year-old girl, and that he fantasized about sexual acts with girls between the ages

of ten and twelve.

      Defendant subsequently pled guilty to one count of attempted sexual

enticement of a minor, in violation of 18 U.S.C. § 2422(b). After application of

various guideline enhancements, as well as a three-level acceptance of

responsibility reduction, the district court determined that Defendant’s total offense

level was 35, which in conjunction with his criminal history category of I, yielded

an advisory guideline range of 168 to 210 months’ imprisonment. After denying

Defendant’s request for a downward variance to the statutory minimum sentence of

120 months, the district court sentenced Defendant to 204 months’ imprisonment.

                                   II. Discussion

      We review the reasonableness of a sentence for an abuse of discretion using

a two-step process. United States v. Pugh, 

, 1190 (11th Cir. 2008).

We look first to whether the district court committed any significant procedural

error and then to whether the sentence is substantively unreasonable in light of the


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totality of the circumstances and the 18 U.S.C. § 3553(a) factors. 1 Id. The party

challenging the sentence bears the burden of showing that it is unreasonable. Id. at

1189. We will reverse only if “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.” Id. at 1191 (quotation marks omitted).

       Here, Defendant has identified no procedural errors nor has he shown that

his sentence is substantively unreasonable. Defendant’s 204-month sentence is

within the advisory guideline range of 168 to 210 months’ imprisonment and well

below the statutory maximum of life imprisonment under 18 U.S.C. § 2422(b).

See United States v. Hunt, 

, 746 (11th Cir. 2008) (explaining that,

while we do not apply a presumption, we ordinary expect a sentence inside the

advisory guidelines range to be reasonable); United States v. Gonzalez, 

, 1324 (11th Cir. 2008) (citing the fact that the sentence imposed was well

below the statutory maximum as an indication of reasonableness).




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         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
educational or 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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      Defendant, however, argues that the district court improperly considered and

weighed certain facts in the case, leading it to erroneously deny Defendant’s

request for a downward variance. In support of that motion for a variance,

Defendant had identified, as a mitigating factor, the fact that he had been raised by

an alcoholic mother and that he, himself, has substance abuse problems. Pertinent

to his offense of conviction, Defendant, who was 23-years old at the time of

sentencing, submitted the results of a polygraph examination finding no deception

in Defendant’s response that, since reaching the age of 18, he has not sexually

touched a minor. Through counsel, Defendant argued that it was impossible to

know for sure whether he would have followed through with his intended sex act,

had these young girls actually been presented to him.

      In response, the district court stated that not only was it unwilling to grant a

downward variance, but, in fact, it was considering an upward variance, given how

“troubling” the court found Defendant’s conduct. Nonetheless, the court

determined that the within-Guidelines range sentence it ultimately imposed was a

reasonable sentence. In explaining why it found unpersuasive Defendant’s request

for a downward variance, the court made the statements that Defendant now relies

on to support his argument that the district court improperly weighed the relevant

factors set out by §§ 3553(a).




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      First, Defendant argues that the court conveyed its intention to increase

Defendant’s punishment “because of the hypothetical possibility that he might

have harmed a child.” But the fact that Defendant likely would have sexually

molested the two young girls he intended to meet, had he not become ensnared in a

sting operation, are factors that the district court could properly consider. Indeed,

there is every indication that Defendant intended to rape a six-year-old and a ten-

year-old girl on the date of his arrest. Section 3553(a) directs a district court to

consider the nature and circumstances of the offense, and to impose a sentence that

reflects the seriousness of that offense and the need to protect the public. 18

U.S.C. § 3553(a)(1), (a)(2)(A) and (C). Thus, the court’s consideration of the real

danger that Defendant’s conduct posed is not only acceptable, but required under §

3553(a). Moreover, the court’s common-sense observation that, at the time of his

arrest, Defendant appeared ready to sexually assault a child was invited by

Defendant’s argument that there was actually little harm created by his conduct,

because the victims were fictional and Defendant might not have actually gone

through with his planned sexual molestation of the young girls.

      As to Defendant’s contention that the district court improperly considered

his explanation to arresting officers, we are not clear why Defendant’s statement

would be off-limits under any scenario. But Defendant’s admission to a long-

standing interest in molesting pre-teen girls was particularly pertinent here because


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this acknowledgement tended to counter his argument that he might not have gone

through with the attempted crime.

      Furthermore, we discern no abuse of discretion by the district court when it

denied Defendant’s request for a downward variance after concluding that the

alleged mitigating factors—Defendant’s acceptance of responsibility and genuine

remorse; his difficult childhood, including substance abuse by both him and his

mother; and his lack of criminal history—were outweighed by the nature and

seriousness of the offense and the need to protect the public. “The weight to be

accorded any given § 3553(a) factor is a matter committed to the sound discretion

of the district court.” United States v. Clay, 

, 743 (11th Cir. 2007)

(quotation marks omitted).

      For all the above reasons, Defendant has not carried his burden to show that

his 204-month sentence is substantively unreasonable.

      AFFIRMED.




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