United States v. Braulio J. Lopez , 215 F. App'x 863 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 26, 2007
No. 06-12423 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00213-CR-ORL-22KRS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRAULIO J. LOPEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 26, 2007)
Before ANDERSON, BIRCH and HULL, Circuit Judges.
PER CURIAM:
Braulio J. Lopez pleaded guilty to one count of knowingly possessing
computer files containing images of child pornography, which he had received
over the Internet, in violation of 18 U.S.C. § 2252A(a)(5)(B), and one count of
knowingly distributing over the Internet computer files containing child
pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A).1 The district court
sentenced Lopez to serve 120 months in prison for the possession count and 240
months in prison for the distribution count—the statutory maximum for each
violation.2 See 18 U.S.C. § 2252A(b)(2) (prescribing maximum prison term of
“not more than ten years” for possession of child pornography); 18 U.S.C. §
2252A(b)(1) (prescribing maximum prison term of “not more than 20 years” for
distribution of child pornography). The district court ordered Lopez’s prison terms
to run concurrently and imposed on him a term of supervised release lasting for the
rest of his life. Lopez challenges his conviction and sentence on three grounds.
First, under the Commerce Clause, Lopez argues that the CPPA is
unconstitutional on its face and that § 2252A is unconstitutional as applied to his
conduct. Lopez makes these arguments for the first time on appeal. As Lopez
concedes in his brief to this court, his Commerce Clause challenges to the statute
are foreclosed by our precedent, and we reject them for that reason. See United
1
These provisions are part of the Child Pornography Prevention Act of 1996 (CPPA), Pub.
L. No. 104-208, § 121, 110 Stat. 3009-26 (codified as amended in scattered sections of 18 U.S.C.
ch. 110).
2
The Federal Sentencing Guidelines yielded an advisory sentencing range of 235-293
months in prison, based on a criminal history category of II and an adjusted offense level of 37.
2
States v. Maxwell, 446 F.3d 1210 (11th Cir. 2006).3
Second, Lopez argues that his sentence must be vacated as unreasonable
because 240 months in prison is greater punishment than is necessary to comply
with the purposes of sentencing expressed in § 3553(a)(2).
Third, Lopez argues that we should vacate his sentence because of the
district court’s failure to address his principal argument at sentencing regarding the
lack of an identifiable victim. Lopez argues that the district court’s failure to rule
on this argument violated Federal Rule of Criminal Procedure 32(i)(3)(B). In
support of this argument, which is made for the first time on appeal, Lopez relies
on United States v. Cunningham, 429 F.3d 673 (7th Cir. 2005). In a similar vein,
Lopez argues that his sentence must be vacated as unreasonable because the district
court did not adequately take into consideration the “nature and circumstances of
the offense,” as required by 18 U.S.C. § 3553(a)(1). Lopez’s sole argument in the
district court, in mitigation of his sentence, was that “no children were directly
harmed in this case.” The lack of direct harm is the relevant “circumstance” of his
3
Lopez’s as-applied challenge is indistinguishable from the challenge rejected in Maxwell.
Moreover, because we rejected an as-applied challenge in Maxwell—thus holding that § 2252A was
constitutional under the Commerce Clause as it applied to Maxwell’s conduct—Lopez’s facial
challenge to the CPPA necessarily fails because, as Maxwell confirms, Lopez cannot show that there
is no set of circumstances under which it can be constitutionally applied. See United States v.
Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 2100 (1987) (“A facial challenge to a legislative Act
is, of course, the most difficult challenge to mount successfully, since the challenger must establish
that no set of circumstances exists under which the Act would be valid”).
3
offense that Lopez says the district court failed to take into consideration.
Having rejected Lopez’s Commerce Clause challenges to the CPPA, we turn
now to consider his second and third arguments.
I.
A.
We review for reasonableness the sentence imposed by the district court.
See United States v. Owens, 464 F.3d 1252, 1254 (11th Cir. 2006). Such review is
deferential, requiring us to evaluate “whether the sentence imposed by the district
court fails to achieve the purposes of sentencing.” United States v. Talley, 431
F.3d 784, 788 (11th Cir.2005). Moreover, the reasonableness standard is applied
to the ultimate sentence, not to each individual decision made during the
sentencing process. United States v. Winingear, 422 F.3d 1241, 1245 (11th Cir.
2005). “[T]he party who challenges the sentence bears the burden of establishing
that the sentence is unreasonable in [] light of both [the] record and the factors in
§ 3553(a).” Talley, 431 F.3d at 788.
In imposing its sentence, the sentencing court must consider the factors
listed in § 3553(a). United States v. Scott, 426 F.3d 1324, 1328-1329 (11th Cir.
2005). These factors include: 1) the nature and circumstances of the offense; 2) the
history and characteristics of the defendant; 3) the need for the sentence imposed to
4
reflect the seriousness of the offense, promote respect for the law, and provide just
punishment for the offense; 4) the need for the sentence to afford adequate
deterrence to criminal conduct; and 5) the need for the sentence to protect the
public from further crimes of the defendant. 18 U.S.C. § 3553(a). District courts
need not explicitly consider on the record every individual § 3553(a) factor; an
indication that the court adequately and properly considered appropriate factors in
conjunction with the sentence will be sufficient. Scott, 426 F.3d at 1329 (imposing
sentence at low end of guidelines range). “The weight to be accorded any given §
3553(a) factor is a matter committed to the sound discretion of the district court.
We will not substitute our judgment in weighing the relevant factors because our
review is not de novo.” United States v. Williams, 456 F.3d 1353, 1363 (11th Cir.
2006). Moreover, although a sentence within the advisory guidelines range is not
per se reasonable, we ordinarily expect such a sentence to be reasonable. Tally,
431 F.3d at 787-788.
B.
Lopez argues that his 240-month sentence is unreasonable because it is a
longer sentence than is necessary to comply with the purposes of sentencing
expressed in § 3553(a)(2). He says that the 240-month sentence is unduly harsh
“in light of the fact that [he] had only one prior conviction” and in light of the fact
5
that “the government, itself, recommended a sentence lower than 20 years.” Lopez
further argues that, in fashioning a sentence, a district court is required under
§ 3553(a) “to start with the minimum sentence permissible and add only so much
additional punishment, if any, as necessary to comply with the purposes of
§ 3553.” He cites no authority for this proposition and we have found none.
We are satisfied from the record in this case that the district court properly
calculated the guideline range and sufficiently considered the § 3553(a) factors.
See Scott, 426 F.3d at 1329-30; Talley, 431 F.3d at 786. The facts Lopez relies
upon in his brief as justifying a sentence less than 240 months—(1) his single prior
conviction and (2) the Government’s statement at sentencing that it would have
been content with a 235-month sentence—do not in our view undermine the
overall reasonableness of his sentence. In focusing strictly on his past criminal
history, Lopez ignores the serious nature of the present offenses to which he
pleaded guilty and disregards the effect of his crimes on vulnerable children.
Moreover, the mere fact that the Government would not have objected to a
sentence that was five months shorter than the one ultimately imposed by the court
is simply irrelevant to our review of the reasonableness of a district judge’s
sentencing determination. Accordingly, we reject Lopez’s argument that the 240-
month imposed on him was “greater than necessary [] to comply with the purposes
6
set forth in [§ 3553(a)(2)].” 18 U.S.C. § 3553(a).
II.
A.
We “review[] questions involving the legality of a sentence de novo.”
United States v. Vincent, 121 F.3d 1451, 1453 (11th Cir. 1997). Where a
defendant failed to raise an issue in the district court, however, we review only for
plain error. Peters, 403 F.3d at 1270. To satisfy the plain-error standard, this
Court must find that (1) the district court committed “error,” (2) the error was plain
or obvious, and (3) the error “affected substantial rights” in that the error was
prejudicial and not harmless. United States v. Olano, 507 U.S. 725, 730-32, 113
S. Ct. 1770, 1776, 123 L. Ed. 2d 508 (1993). An error is not plain “unless the error
is clear under current law.” Id. at 734, 113 S.Ct. at 1777. If these criteria are met,
this Court may, in its discretion, correct the plain error if it “seriously affect[s] the
fairness, integrity, or public reputation of judicial proceedings.” Id. at 736, 113
S. Ct. 1779 (internal quotations and citation omitted). Moreover, an error is not
plain unless it is contrary to precedent directly resolving a legal issue.
Lejarde-Rada, 319 F.3d at 1291.
B.
Lopez argues for the first time on appeal that the district court violated
7
Federal Rule of Criminal Procedure 32(i)(3)(B) when, at sentencing, it “fail[ed] to
address, at a minimum, [Lopez’s] principal argument [in mitigation of the statutory
maximum sentence] regarding the lack of an identifiable victim.” Rule 32(i)(3)(B)
provides as follows: “At sentencing, the court must—for any disputed portion of
the presentence report or other controverted matter—rule on the dispute or
determine that a ruling is unnecessary either because the matter will not affect
sentencing, or because the court will not consider the matter in sentencing.” The
Rule requires “a district court, at the sentencing stage, to make independent
findings establishing the factual basis for its Guideline calculations.” United
States v. Hamaker, 455 F.3d 1316, 1338 (11th Cir. 2006).
We find Lopez’s Rule 32 argument to be without merit because subsection
(i)(3)(B), on its face, is inapplicable in this case. A district court’s obligation under
Rule 32(i)(3)(B) arises only when there is a “dispute” between the parties in need
of judicial resolution—whether that dispute regards some portion of the
presentence report or some “other controverted matter.” Lopez does not argue that
he disputed any portion of the presentence report. Rather, he says that his
mitigation argument—the lack of an identifiable child victim—was a “controverted
matter” for purposes of the Rule. It was not.
“Controverted” means “to dispute or oppose by reasoning.” M IRRIAM
8
W EBSTER’S C OLLEGIATE D ICTIONARY 252 (10th ed. 1993). The Government did
not dispute the fact that Lopez’s crime did not involve contact with an identifiable
minor. Thus there was no “dispute” for the district court to have ruled on. Instead,
Lopez’s argument was merely an argument in mitigation of his sentence.
Contrary to Lopez’s assertion, we are persuaded by our reading of the record
that the district court did not fail to consider Lopez’s mitigation argument—rather,
it appears that the district court simply rejected it as a basis for departing below the
advisory guidelines range.4 That decision was reasonable, and we find no Rule 32
violation.
III.
Upon review of the record and consideration of the parties’ briefs, we find
no reversible error and, accordingly, affirm Lopez’s conviction and sentence.
AFFIRMED.
4
We accordingly reject Lopez’s argument that the district court failed to consider the
“circumstances of the offense” under § 3553(a)(1).
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