United States v. Pedro Enrique Rivera , 295 F. App'x 359 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 6, 2008
No. 08-12154 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00016-CR-1-SPM-AK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PEDRO ENRIQUE RIVERA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(October 6, 2008)
Before BIRCH, DUBINA and PRYOR, Circuit Judges.
PER CURIAM:
Appellant Pedro Enrique Rivera appeals his 168-month sentence for
receiving and distributing child pornography, in violation of 18 U.S.C. §
2252A(a)(2)(A). On appeal, Rivera concedes that the district court properly
calculated his guideline range, but argues that his sentence was both procedurally
and substantively unreasonable because even though he received a guideline
sentence, it did not accurately reflect his conduct. According to Rivera, the
appropriate sentence was the statutory minimum of 60 month’s imprisonment.
Rivera especially emphasizes the need to avoid disparate sentences among
similarly situated defendants and, in support of his position, cites cases in which
child pornography defendants received a downward variance. See, e.g., United
States v. Pugh, 515 F.3d 1179 (11th Cir. 2008); United States v. Gray, 453 F.3d
1323 (11th Cir. 2006).
We review a sentence for unreasonableness under a “deferential abuse-of-
discretion standard.” Gall v. United States, 552 U.S. ___,128 S. Ct. 586, 591, 169
L. Ed. 2d. 445 (2007). A sentence is procedurally unreasonable if the district court
failed to calculate or incorrectly calculated the guidelines, treated the guidelines as
mandatory, failed to consider the 18 U.S.C. § 3553(a) factors, selected a sentence
based on clearly erroneous facts, or failed to adequately explain the chosen
sentence. Id. at ___, 128 S. Ct. at 597. A sentence is substantively unreasonable
“if it does not achieve the purposes of sentencing stated in § 3553(a).” Pugh, 515
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F.3d at 1191 (quoting U.S. v. Martin, 455 F.3d 1227, 1237 (11th Cir. 2006)).
Section 3553(a) provides that district courts must consider, inter alia, (1) the
applicable guideline range; (2) the nature and circumstances of the offense; (3) the
history and characteristics of the defendant; (4) the need for the sentence imposed
to reflect the seriousness of the offense, to promote respect for the law, and to
provide just punishment for the offense; (5) the need for adequate deterrence to
criminal conduct; (6) protection of the public from further crimes of the defendant;
and (7) the need to avoid unwarranted sentencing disparities. 18 U.S.C. § 3553(a).
“The weight to be accorded any given § 3553(a) factor is a matter committed to the
sound discretion of the district court, and we will not substitute our judgment in
weighing the relevant factors.” United States v. Amedeo, 487 F.3d 823, 832 (11th
Cir.) (quotations and alterations omitted), cert. denied, 128 S. Ct. 671 (2007).
In Pugh, a jury convicted the defendant of possessing child pornography,
and the district court gave him a significant downward variance during sentencing.
515 F.3d at 1183, 1187. We concluded that the significant downward variance was
substantively unreasonable, in part, because the final sentence did not afford
adequate deterrence to criminal conduct, which “is particularly compelling in the
child pornography context.” Id. at 1194. In addition, we found that the downward
variance did not reflect the seriousness of the offense, the guideline sentencing
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range, and the need to protect the public from further crimes by the defendant. Id.
at 1195, 1200-01.
After reviewing the record and reading the parties’ briefs, we conclude that
Rivera has not met his burden of establishing that his sentence was either
procedurally or substantively unreasonable. Therefore, we affirm Rivera’s
sentence at the low end of the guideline range.
AFFIRMED.
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