from the United States District Court for the Northern
District of Texas
WIENER, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, CIRCUIT JUDGE.
Bryan Kendall Pittsinger pleaded guilty to sexually
exploiting a minor in violation of 18 U.S.C. § 2251(a).
The district court sentenced him to 360 months'
imprisonment, the statutory maximum. Pittsinger now appeals
that sentence, contending that the district court erred in
denying his motion for a downward variance before permitting
him to address the court and in applying the three-level
reduction for acceptance of responsibility to his total
offense level of 51 rather than to his adjusted total offense
level of 43. We find no error and AFFIRM.
Kendall Pittsinger pleaded guilty to sexually exploiting a
minor in violation of 18 U.S.C. § 2251(a). Section 2251
provides a statutory minimum sentence of fifteen years'
imprisonment and a statutory maximum of thirty years. 18
U.S.C. § 2251(e). A Presentence Report ("PSR")
determined that his final offense level was 51 before
applying a three-level reduction for acceptance of
responsibility. Because that calculation resulted in an
offense level greater than 43, the PSR treated his offense
level of 48 as an offense level of 43. The PSR also
determined that Pittsinger had a criminal history category of
I. A total offense level of 43 and a criminal history
category of I produces a recommended guideline sentence of
life imprisonment. However, because that would exceed §
2251's statutory maximum, the PSR reduced the Guidelines
sentence to the statutory maximum of 360 months' (or 30
moved for a downward variance from the Guidelines sentence
based on consideration of the factors set forth in 18 U.S.C.
3553(a). At the sentencing hearing, the district court
indicated its "tentative" decision that the motion
for a variance "should be denied, " then heard
argument on the motion from Pittsinger's counsel.
Pittsinger's counsel and the court then had the following
MR. LEHMANN: And, Your Honor, Mr. Pittsinger would like to
address the Court.
THE COURT: We're not there yet. We're still working
on the motion for downward departure - or variance.
MR. LEHMANN: Thank you.
court then "finally denied" the motion for a
denying the motion, the court recited the Guidelines
calculation from the PSR, stating that Pittsinger's
offense level and criminal history category resulted in a
Guidelines sentence of 360 months. The court then noted that
it had received several letters on Pittsinger's behalf
and asked Pittsinger's counsel if he "wish[ed] to
make any remarks on [Pittsinger's] behalf or present
anyone else further?" Counsel made a few remarks, and
the court and Pittsinger then had the following exchange:
THE COURT: Mr. Pittsinger, I've read your letter. Is
there anything you would like to say further on your own
DEFENDANT PITTSINGER: Yes, Your ...