United States v. Oscar R. Quincoces , 503 F. App'x 800 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-13368
Non-Argument Calendar
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D.C. Docket No. 2:11-cr-14065-KMM-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
OSCAR R. QUINCOCES,
Defendant - Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(January 10, 2013)
Before WILSON, MARTIN and FAY, Circuit Judges.
PER CURIAM:
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Oscar R. Quincoces appeals his 293-month sentence for one count of
attempting to entice a minor to engage in sexual activity and one count of enticing
a minor to engage in sexual activity, both in violation of 18 U.S.C. § 2422(b), as
substantively unreasonable. Finding no abuse of discretion, we affirm.
A. Background
In October 2011, an undercover law enforcement officer (UC) who had
adopted the online persona of a 15-year-old boy was approached by Defendant
Quincoces, who identified himself as a 40-year-old male. 1 In the ensuing chat
conversation, Quincoces asked the UC to send sexually explicit photographs of
himself. Quincoces also indicated that he had previously engaged in sexual
behavior with a young boy in his neighborhood. The online conversations
continued for several weeks, and eventually Quincoces and the UC exchanged
phone numbers. They then began communicating via text message. In November
2011, Quincoces and the UC agreed to meet at a Taco Bell restaurant. When
Quincoces arrived and parked in a nearby Walmart for a meeting with the UC
(who he thought was a 15-year-old boy interested in sex), Quincoces was arrested.
A search of his vehicle revealed a package of condoms and several Viagra-type
pills.
1
The facts contained herein are gleaned from the portions of the presentence investigation report
(PSI) to which Quincoces did not object. “It is the law of this circuit that a failure to object to
allegations of fact in a PSI admits those facts for sentencing purposes.” United States v. Wade,
458 F.3d 1273, 1277 (11th Cir. 2006).
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A subsequent police investigation of Quincoces’s electronic devices
revealed that he had previously met two minors, known as J.S. and J.P., in person.
J.S., who was 14 years old, advised that he had sent Quincoces nude photographs
of himself, engaged in a sexual webcam session with Quincoces, and eventually
met and engaged in sexual acts with Quincoces. J.P, a 15-year-old boy, advised
that he had sent Quincoces nude photographs of himself and had eventually agreed
to meet Quincoces, though he did not report having been molested by Quincoces.
The district judge accepted Quincoces’s plea of guilty to the charged
offenses and sentenced Quincoces to 293 months’ imprisonment, at the high end of
the 235–293 month Guideline range. The statutory maximum had been life
imprisonment. At sentencing, Quincoces argued that his actions resulted from a
period of serious depression and requested the low end of the Guideline range.
The district judge rejected this argument. In sentencing Quincoces, the district
judge also considered victim impact statements from the children depicted in
images of child pornography found on Quincoces’s computer. Though the district
judge acknowledged that the images and concomitant victim impact statements did
not constitute relevant conduct of the charged offenses, he nonetheless found them
helpful to his application of the 18 U.S.C. § 3553(a) sentencing factors. The
district judge considered a sentence at the high end of the Guideline range
necessary to deter Quincoces from further criminal conduct and to recognize and
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promote respect for the law. He accordingly sentenced Quincoces to 293 months
followed by a lifetime of supervised release. This appeal followed.
B. Discussion
1. Jurisdiction
Before we reach the merits of Quincoces’s appeal, we must satisfy ourselves
of jurisdiction. On June 6, 2012, the district court sentenced and entered judgment
against Quincoces, but left open the question of restitution until a later date.
Quincoces filed a timely notice of appeal on June 19, 2012. We then directed the
parties to provide supplemental briefing as to jurisdiction, and specifically
requested that they address whether the district court’s June 6 judgment was final
and appealable in light of the lower court’s deferral of a final determination on
restitution. On September 5, 2012, this court noted probable jurisdiction, but
explained that a “final determination regarding jurisdiction will be made by the
panel to whom this appeal is submitted on the merits.”
We agree with the parties that we have jurisdiction. Though the district
court’s judgment order may not have been final prior to its determination on
restitution, Quincoces’s timely notice of appeal ripened into an effective notice of
appeal on the date the district court made its final restitution determination on July
31, 2012. See United States v. Kapelushnik, 306 F.3d 1090, 1093–94 (11th Cir.
2002) (explaining that where a district court leaves open the issue of restitution and
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a timely notice of appeal is filed, the “premature notice of appeal ripen[s] into an
effective notice as of th[e] date” the judgment of conviction later becomes final);
see also Fed. R. App. P. 4(b)(2) (“A notice of appeal filed after the court
announces a decision or order—but before the entry of the judgment or order—is
treated as filed on the date of and after the entry.”).
2. Reasonableness of Sentence
We review the sentence imposed by the district court for reasonableness.
United States v. Booker, 543 U.S. 220, 264, 125 S. Ct. 738, 767 (2005). Our
inquiry includes two distinct elements: we first determine whether a sentence is
procedurally reasonable, and then turn our attention to whether the sentence is, on
the whole, substantively reasonable. See United States v. Gonzalez, 550 F.3d
1319, 1323 (11th Cir. 2008) (per curiam). Quincoces does not argue that his
sentence is procedurally unreasonable,2 and our review of the record reveals no
procedural defect, so the only issue before us is the substantive reasonableness of
his 293-month sentence.
We review the substantive reasonableness of the sentence imposed by the
district court under the “under [the] deferential abuse-of-discretion standard.” Gall
v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591 (2007). We measure
2
It is axiomatic that a defendant’s failure to raise an issue on appeal abandons that issue, and we
therefore deem Quincoces to have abandoned any claim of procedural unreasonableness. United
States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003).
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reasonableness against the factors outlined in § 3553(a). United States v. Pugh,
515 F.3d 1179, 1188 (11th Cir. 2008). These factors include: (1) the nature and
circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the offense; (3) the need to
deter criminal conduct; (4) the need to protect the public from further crimes of the
defendant; (5) the need to provide the defendant with needed educational or
vocational training or medical care; (6) the kinds of sentences available; (7) the
Guideline range; (8) policy statements of the United States Sentencing
Commission; (9) the need to avoid unintended sentencing disparities; and (10) the
need to provide restitution to victims. See 18 U.S.C. § 3553(a).
The party challenging a sentence “bears the burden of establishing that the
sentence is unreasonable in the light of both th[e] record and the factors in
[§] 3553(a).” United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005) (per
curiam). “In our evaluation of a sentence for reasonableness, we recognize that
there is a range of reasonable sentences from which the district court may choose,
and when the district court imposes a sentence within the advisory Guidelines
range, we ordinarily will expect that choice to be a reasonable one.” Id. Thus, we
will vacate and remand for a new sentencing “if, but only if, we are left with the
definite and firm conviction that the district court committed a clear error of
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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.” United
States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (internal quotation
marks omitted); see also Pugh, 515 F.3d at 1194 (observing that “a sentence may
be unreasonable if it is grounded solely on one factor, relies on impermissible
factors, or ignores relevant factors”).
Quincoces argues that the district court erred in sentencing him to 293
months’ imprisonment because “it gave too much weight to [Quincoces’s]
collateral possession of a few child pornography images and victim impact
statements from the victims of those images” and “failed to give sufficient weight
to [Quincoces’s] history of medical and psychological problems and to his lack of
a serious criminal history.” We disagree.
First, and with regard to Quincoces’s argument that his crimes were the
product of severe depression and that he lacked a serious criminal history, the
district court expressly indicated that it would consider these facts as part of the
“history and characteristics of the defendant,” a § 3553(a) factor. The district
judge weighed Quincoces’s purported physical and mental health issues at
sentencing; he was simply incredulous at the notion that Quincoces’s depression
carried much potency as a mitigating factor in this particular case. In other words,
the record clearly reflects that the district judge considered Quincoces’s arguments
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in mitigation, and thereafter soundly rejected them. We discern no error in the
district court’s consideration and rejection of Quincoces’s proferred argument at
sentencing.
Second, and as to Quincoces’s argument that the district court relied too
heavily on images of child pornography for which he was never charged (as well
as the victim impact statements relating to those images), we are similarly
unpersuaded. There is no limitation on the evidence of a defendant’s background,
character, or conduct that the sentencing judge may properly consider in imposing
an appropriate sentence. See 18 U.S.C. § 3661; see also United States v. Lindsey,
482 F.3d 1285, 1294 (11th Cir. 2007) (noting that “Booker does not forbid a
district court from considering criminal acts for which a defendant has not been
charged or has been acquitted as long as those acts are proved by a preponderance
of the evidence”). At sentencing, the district judge expressly noted that while the
child pornography and victim impact statements did “not constitute relevant
conduct,” he was still required “to consider[] information from whatever source
that will aid the Court in fashioning an appropriate sentence and considering the
[§] 3553 factors.” Therefore, and insofar as Quincoces argues that it was error for
the district court to consider the victim impact statements and the depraved images
found on his computer, he is wrong.
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In sum, our review of the record reveals that the district judge imposed
Quincoces’s sentence only after considering the parties’ arguments, the Guideline
range, and the § 3553(a) factors, including the nature and circumstances of the
offense, the history and characteristics of the defendant, the need to promote
respect for the law, and the need to provide adequate deterrence. See Rita v.
United States, 551 U.S. 338, 356, 127 S. Ct. 2456, 2468 (2007) (“[W]hen a judge
decides simply to apply the Guidelines to a particular case, doing so will not
necessarily require lengthy explanation.”). This sentence was reasonable.
“As we have stated before, ‘[c]hild sex crimes are among the most egregious
and despicable of societal and criminal offenses.’” Irey, 612 F.3d at 1206 (quoting
United States v. Sarras, 575 F.3d 1191, 1220 (11th Cir. 2009) (affirming as
reasonable a 100-year sentence for a first offender who sexually abused a 13-year-
old girl and photographed the crime))). It is no surprise, then, that such heinous
conduct should carry with it a stiff punishment. The judgment of the district court
is affirmed.
AFFIRMED.
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