Full Opinion

USCA11 Case: 25-10747 Document: 38-1 Date Filed: 11/05/2026 Page: 1 of 12 NOT FOR PUBLICATION In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 25-10747 Non-Argument Calendar ____________________ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus DEMARIO DESMOND FENTON, Defendant- Appellant. ____________________ Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 2:23-cr-00148-TPB-KCD-1 ____________________ Before ROSENBAUM, JILL PRYOR, and GRANT, Circuit Judges. PER CURIAM: Demario Fenton pleaded guilty to producing child pornog- raphy and received a 180-month sentence. The court ordered this USCA11 Case: 25-10747 Document: 38-1 Date Filed: 11/05/2026 Page: 2 of 12 2 Opinion of the Court 25-10747 sentence to run consecutively to any sentence imposed in a pend- ing Florida state court case in which Fenton faced molestation charges arising out of the same incidents of child sexual abuse. On appeal, Fenton challenges his sentence, arguing that the district court procedurally erred by failing to consider the Sentencing Guidelines’ recommendation that his federal sentence should run concurrently to any state sentence. After careful consideration, we affirm. I. A nine-year-old child reported to officials at her school that Fenton had sexually abused her. In interviews with police, the child described the abuse and disclosed that Fenton had recorded some of the incidents. Based on the child’s report, Fenton was arrested and charged in Florida state court with four counts of lewd and lascivious mo- lestation of a victim under the age of 12. In a post-arrest interview, Fenton admitted to sexually abusing the victim. After searching Fenton’s electronic devices, law enforcement found five video re- cordings he had made of the sexual abuse. A federal grand jury indicted Fenton on a single count of production of child pornography in violation of 18 U.S.C. § 2251. 1 1 Fenton initially was charged in Florida with one count of using a minor in a sexual performance. But after the federal indictment, Florida dismissed this charge. USCA11 Case: 25-10747 Document: 38-1 Date Filed: 11/05/2026 Page: 3 of 12 25-10747 Opinion of the Court 3 For this crime, he faced a mandatory minimum of 15 years’ impris- onment and a maximum of 30 years’ imprisonment. 18 U.S.C. § 2251(e). He also faced a mandatory minimum of five years of su- pervised release. Id. § 3853(k). Fenton pleaded guilty in the federal case. Before Fenton’s federal sentencing, a probation officer pre- pared a presentence investigation report (“PSR”). The PSR detailed the offense conduct, including how Fenton had sexually abused the child when she traveled to Florida where he lived and had recorded some of the instances of sexual abuse. The PSR addressed application of the Sentencing Guide- lines. It reported that Fenton’s total offense level was 43 and that he was in criminal history category I. The PSR stated that his guide- lines range was 360 months’ imprisonment, which was the applica- ble statutory maximum. It noted that Fenton still faced charges in the pending Florida state case and explained that § 5G1.3(c) of the Sentencing Guidelines recommended that the court order Fenton’s federal sentence to run concurrently with any sentence imposed in the state case. The PSR also laid out Fenton’s history and characteristics. He was born in Jamaica and moved to the United States as a teen- ager. When he was around five years old, he was sexually abused on two separate occasions, once by a teacher at his school and an- other time by a family member. Fenton reported both instances of abuse to his family, but nothing was done in response to his re- ports. He said that after the abuse, he did not trust others and kept USCA11 Case: 25-10747 Document: 38-1 Date Filed: 11/05/2026 Page: 4 of 12 4 Opinion of the Court 25-10747 to himself. When Fenton was 11, he viewed pornography and soon developed an addiction to it. At Fenton’s sentencing hearing, neither he nor the govern- ment objected to the PSR. The court adopted the PSR’s guidelines calculation. When announcing Fenton’s guidelines range, the court did not mention that § 5G1.3 of the Sentencing Guidelines recommended that the federal sentence should run concurrently with any state sentence. The district court then gave the parties an opportunity to address the sentencing factors set forth at 18 U.S.C. § 3553(a). 2 The government requested a sentence of 360 months’ imprisonment. It argued that a severe sentence was needed to “reflect the serious- ness of the offense, promote respect for the law, provide just pun- ishment for the offense, . . . afford an adequate deterrence to crim- inal conduct[,] and protect the public from further crimes of this 2 Under § 3553(a), a district court is required to impose a sentence that is “suf- ficient, but not greater than necessary, to comply with the purposes” of the statute. 18 U.S.C. § 3553(a). These purposes include the need to: reflect the seriousness of the offense; promote respect for the law; provide just punish- ment; deter criminal conduct; protect the public from the defendant’s future criminal conduct; and effectively provide the defendant with educational or vocational training, medical care, or other correctional treatment. Id. § 3553(a)(2). The court must also consider the nature and circumstances of the offense, the history and characteristics of the defendant, the kinds of sentences available, the applicable guidelines range, the pertinent policy statements of the Sentencing Commission, the need to avoid unwarranted sentencing dis- parities, and the need to provide restitution to victims. Id. § 3553(a)(1), (3)–(7). USCA11 Case: 25-10747 Document: 38-1 Date Filed: 11/05/2026 Page: 5 of 12 25-10747 Opinion of the Court 5 defendant.” Doc. 77 at 6. 3 The government also emphasized that Fenton’s criminal conduct was “not a one-time event.” Id. at 8. Fenton requested that the court impose a 180-month sen- tence, the statutory minimum. He asked the court to consider his personal history and characteristics, including the sexual abuse he suffered as a child, and stated that he needed “treatment to address his trauma and address his addiction.” Id. at 16. Fenton expressed remorse for his conduct. During the hearing, the court remarked that it agreed with the government about the need for a lengthy sentence. It stated that if it were sentencing Fenton in the state court case, it probably would impose a life sentence. But it acknowledged that it was “only sentencing him here on the production of child pornography piece” and thus was going to focus on the “videotaping” aspect of his criminal conduct. Id. at 12–13. The court stated that because Fen- ton’s state court case was still pending, it was going to be careful to “split . . . up” the conduct and “not go overboard on the federal piece of this.” Id. at 15. The court also noted that Fenton, who was 21 years old at the time of his sentencing, was relatively young and remarked that “15 years is a long time for a person this age.” Id. The court ultimately declined to announce a sentence at the initial sentencing hearing and decided to wait to see how Fenton’s state court case proceeded. 3 “Doc.” numbers refer to the district court’s docket entries. USCA11 Case: 25-10747 Document: 38-1 Date Filed: 11/05/2026 Page: 6 of 12 6 Opinion of the Court 25-10747 About three months later, the court held Fenton’s second sentencing hearing. Both the prosecutor and defense attorney from the state case attended this hearing. The court asked these attor- neys about the status of the state case. They explained that the case remained pending and that Fenton was facing a 25-year mandatory minimum there. The court questioned the state prosecutor and had her verify that the State did not intend to “back[] off of [the state] charges or anything like that” and that Fenton would be “stuck with the 25-year minimum mandatory.” Doc. 67 at 3. The defense counsel in the state case confirmed that Fenton planned to plead guilty to the state charges. The court announced that, based on this information, it likely was going to impose “the 15-year min- imum mandatory here.” Id. at 4. The federal government then argued that based on the § 3553(a) factors, the court should impose a longer, 30-year sen- tence. The court questioned the government why such a long sen- tence was necessary if Fenton’s federal sentence was going to run consecutively to the state sentence: “If he’s getting a 25-year mini- mum mandatory and I give him 15 on top of that, why does it mat- ter? Tell me the reason. Tell me the practical reason.” Id. at 8 (em- phasis added). The government responded that a 30-year sentence was appropriate given the egregiousness of Fenton’s conduct and because no sentence had yet been imposed in the Florida case. The court then gave the defense an opportunity to be heard. Fenton spoke and apologized to the victim for his conduct. USCA11 Case: 25-10747 Document: 38-1 Date Filed: 11/05/2026 Page: 7 of 12 25-10747 Opinion of the Court 7 The court then announced that after considering the Sen- tencing Guidelines and the § 3553(a) factors, it was imposing a sen- tence of 15-years imprisonment followed by a lifetime term of su- pervised release. The court directed that this sentence would run consecutively to any sentence imposed in the state case. In impos- ing the sentence, the court noted that Fenton was going to receive a sentence of at least 25 years in the state case and found that a con- secutive 15-year sentence in this case was “sufficient but not greater than necessary to comply with the statutory purposes of sentenc- ing.” Id. at 10. The court emphasized the “egregious, egregious na- ture of the offense here” and stated that Fenton “deserve[d] many, many years behind bars for what he has done here.” Id. When the court announced that the federal sentence would run consecutively to any state sentence, Fenton objected and asked the court to impose a concurrent sentence, pointing out that it had recently imposed a concurrent sentence in another similar case. The court rejected this argument. After the court finished an- nouncing the sentence, Fenton again objected to the “consecutive part of the sentence,” arguing that it was “substantively and proce- durally unreasonable,” and stated that this crime has “the same vic- tim [and] the same conduct as the state case.” Id. at 14. The court responded that it understood Fenton’s argument but was imposing a consecutive sentence nonetheless. This is Fenton’s appeal. While this appeal was pending, Fen- ton pleaded guilty in the state case and received a total sentence of 30 years’ imprisonment. The state court ordered this sentence to USCA11 Case: 25-10747 Document: 38-1 Date Filed: 11/05/2026 Page: 8 of 12 8 Opinion of the Court 25-10747 run consecutively to the federal sentence. Fenton is currently in state custody serving his state sentence. II. We “review all sentences under a deferential abuse-of-dis- cretion standard.” United States v. Henry, 1 F.4th 1315, 1322 (11th Cir. 2021). III. When sentencing a defendant to a term of imprisonment, a district court has discretion to direct that the term of imprisonment will run concurrently or consecutively with a sentence anticipated to be imposed in a state court proceeding. See Setser v. United States, 566 U.S. 231, 244–45 (11th Cir. 2012). The Sentencing Guidelines provide guidance to a district court faced with deciding whether to impose a concurrent or consecutive sentence. Section 5G1.3 ad- vises that when a defendant is expected to receive a term of impris- onment for a state offense that was relevant conduct for his federal offense, the federal sentence “shall be imposed to run concurrently to the anticipated term of imprisonment” for the state offense. U.S Sent’g Guidelines Manual § 5G1.3(c); see id. § 1B1.3(a)(2). Section 5G1.3, like the rest of the Sentencing Guidelines, is advisory. Henry, 1 F.4th at 1322; see United States v. Booker, 543 U.S. 220, 246 (2005). Although the Sentencing Guidelines are not man- datory, “that does not mean that district courts can simply disre- gard them.” United States v. Johnson, No. 21-14144, F.4th , 2026 WL 3070131 (11th Cir. Oct. 14, 2026). Instead, a court must USCA11 Case: 25-10747 Document: 38-1 Date Filed: 11/05/2026 Page: 9 of 12 25-10747 Opinion of the Court 9 “consult [the] Guidelines and take them into account when sen- tencing.” Henry, 1 F.4th at 1320 (citation modified). A district court nevertheless has discretion “to tailor the sentence in light of other statutory concerns” and may impose a sentence outside the appli- cable guidelines range “so long as the judge has considered, and the sentence reflects, the factors outlined in § 3553(a): the nature and circumstances of the crime, the need for the sentence imposed, the kinds of sentences available, and the like.” Id. at 1321 (citation mod- ified). In sentencing a defendant, a district court judge must pro- vide an explanation sufficient to “satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356 (2007). And when a judge imposes a sen- tence outside the applicable guidelines range, he must “explain why he has done so.” Id. at 357. In considering the § 3553(a) factors, “the district court does not need to discuss or state each factor ex- plicitly,” but the court must acknowledge that it considered the de- fendant’s arguments and those factors. United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). And we may look to the rec- ord and the case’s context to determine the district court’s reason- ing for imposing a specific sentence. Rita, 551 U.S. at 359. On appeal, Fenton argues that the district court committed a procedural error at sentencing because it failed to consider the recommendation under § 5G1.3 of the Sentencing Guidelines that USCA11 Case: 25-10747 Document: 38-1 Date Filed: 11/05/2026 Page: 10 of 12 10 Opinion of the Court 25-10747 his federal sentence should run concurrently with his state sen- tence. 4 He argues that remand is “needed so the district court can consider the advice of § 5G1.3 and thus deliberate over whether the guideline recommendation for a concurrent sentence is appropri- ate.” Appellant’s Br. 16. We recently considered a similar issue. See Johnson, 2026 WL 3070131. The defendant in Johnson pleaded guilty to being a felon in possession of a firearm. Id. at *1. At the time of his federal sen- tencing, he was awaiting sentencing in a state court case arising out of the same incident. Id. The district court imposed a sentence of 84 months’ imprisonment, which was at the low end of the appli- cable guidelines range, and ordered the sentence to run consecu- tively to any state court sentence that was imposed. Id. at *1–*2. On appeal, the defendant challenged his consecutive sen- tence, arguing that the district court failed to adequately consider § 5G1.3 because it failed to “acknowledge[] § 5G1.3(c)” and “its pol- icy in determining his sentence.” Id. at *6. We rejected this chal- lenge, concluding that the district court’s explanation was ade- quate. Id. Even though the district court at the sentencing hearing in Johnson did not “specifically reference § 5G1.3(c),” we determined 4 The government argues that we should review this issue for plain error only because Fenton did not raise it in the district court. But we need not decide whether Fenton adequately raised this issue in the district court because, even assuming he raised this issue below, his challenge fails. USCA11 Case: 25-10747 Document: 38-1 Date Filed: 11/05/2026 Page: 11 of 12 25-10747 Opinion of the Court 11 that it had “justif[ied] the variance when it imposed a non-concur- rent sentence.” Id. We explained that at the sentencing hearing both the defendant and the government had argued about whether the federal sentence should run concurrently or consecutively to the state sentence. Id. After hearing from the parties, the district court explained why it chose to impose a consecutive sentence, dis- cussing the defendant’s “extensive criminal history and the nature of that criminal history.” Id. The district court imposed a sentence at the low end of the applicable guidelines range because it deter- mined that this sentence was “adequate and fair” when paired with a “consecutive state sentence.” Id. Based on the parties’ arguments and the district court’s explanation, we determined that the court had “disagreed with § 5G1.3(c)’s rule that the sentences should be run concurrently, even if the district court never referenced the sec- tion by name.” Id. Because the district court had set forth “its basis for deviating from the Guidelines[’] recommendations,” we con- cluded that there was no error. Id. at *7. We reach a similar conclusion here. Even though the district court did not reference § 5G1.3(c) by name at Fenton’s sentencing hearings, it adequately justified its decision to vary from § 5G1.3(c)’s recommendation to impose a concurrent sentence. The district court heard from the parties and gave them an oppor- tunity to address whether the federal sentence should run concur- rently or consecutively to the state sentence. In announcing the sentence, the court considered the § 3553(a) factors and empha- sized the egregious nature of Fenton’s criminal conduct. Although USCA11 Case: 25-10747 Document: 38-1 Date Filed: 11/05/2026 Page: 12 of 12 12 Opinion of the Court 25-10747 Fenton’s guidelines range for the federal crime was 30 years’ im- prisonment, the court explained that it was granting a substantial downward variance to 15 years’ imprisonment because it was di- recting that the federal sentence would run consecutively, not con- currently, to the state sentence. Like in Johnson, the district court’s statements here show that it “disagreed with § 5G1.3(c)’s rule that the sentences should run concurrently, even if the district court never referenced the section by name.” Id. at *6. Because the dis- trict court adequately explained its reasons for deviating from § 5G1.3(c)’s recommendation, we conclude that there was no error and affirm Fenton’s sentence. AFFIRMED.