United States v. Roberto Carlos Cuellar , 617 F. App'x 966 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-12369
Non-Argument Calendar
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D.C. Docket No. 0:13-cr-60299-WPD-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERTO CARLOS CUELLAR,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 22, 2015)
Before JORDAN, JILL PRYOR and BLACK, Circuit Judges.
PER CURIAM:
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Roberto Carlos Cuellar was convicted, after a jury trial, of one count of
possessing child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B), and was
sentenced to 210 months’ imprisonment. Cuellar appeals both his conviction and
sentence. After review, we affirm.
I. DISCUSSION
A. Rule 16
Cuellar first contends the district court should have granted his motion for
mistrial, after the Government committed what Cuellar characterizes as a violation
of Rule 16 of the Federal Rules of Criminal Procedure. Cuellar asserts the only
direct evidence tying him to the child pornography was his statements to the FBI,
and his trial strategy was to attack the accuracy of the agents’ report of those
statements. He argues the Government’s nondisclosure of his statement to the FBI
that he refused to write or sign a statement was a discovery violation of Rule 16,
and the violation attacked the foundation of his defense strategy and required a
mistrial.
Rule 16(a) of the Federal Rules of Criminal Procedure requires the
government to disclose during discovery, upon the defendant’s request, “the
substance of any relevant oral statement made by the defendant, before or after
arrest, in response to interrogation by a person the defendant knew was a
government agent if the government intends to use the statement at trial.” Even if
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a Rule 16 violation occurred, however, we will not reverse unless the violation
prejudiced a defendant’s substantial rights, meaning that actual prejudice must be
shown. United States v. Chastain, 198 F.3d 1338, 1348 (11th Cir. 1999). “The
actual prejudice will often turn on the strength of the Government case,” United
States v. Rodriguez, 799 F.2d 649, 652 (11th Cir. 1986), but “the degree to which
[a defendant’s trial] rights suffer as a result of a discovery violation is determined
not simply by weighing all the evidence introduced, but rather by considering how
the violation affected the defendant’s ability to present a defense,” United States v.
Noe, 821 F.2d 604, 607 (11th Cir. 1987). “Substantial prejudice exists when a
defendant is unduly surprised and lacks an adequate opportunity to prepare a
defense, or if the mistake substantially influences the jury.” United States v.
Camargo-Vergara, 57 F.3d 993, 998–99 (11th Cir. 1995).
Assuming, arguendo, there was a Rule 16 violation, there was no substantial
prejudice that would require reversal. See Chastain, 198 F.3d at 1348. The
strength of the Government’s case at trial was significant. Special Agent Dan
Johns testified that agents found a laptop with child pornography and a disc of the
Ares file-sharing program in Cuellar’s bedroom. At the FBI office, Cuellar
provided the password for the computer and showed the agents where the child
pornography files were in the library section of Ares, even though he denied
downloading them. Johns’ investigation showed that Cuellar owned the laptop
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since at least 2012, and the time-line analysis showed the computer was used to
both view and download child pornography in 2013.
Kimberly Aldunate, Cuellar’s roommate, testified the computer belonged to
Cuellar, and she had never seen anyone else use it. Even though Cuellar had once
given her the password, she had never used the computer.
Yohel Diaz, the forensic computer expert, testified that the files were found
in the “my shared folder” in Ares under the user name “Carlos.” One of these files
included a video downloaded four days before agents executed the search warrant
on Cuellar’s house. Similarly, searches for PTHC, or preteen hardcore content,
had been made in Ares two days before agents executed the search warrant.
As such, even without any of Cuellar’s statements to the agents, there was
evidence the computer belonged to him, no one else used it, and someone whose
user name was the same as Cuellar’s middle name had both downloaded child
pornography four days before agents executed their search and searched for child
pornography two days before the agents’ search.
The types of substantial prejudice present in Noe and Camargo-Vergara are
not present here. Unlike Noe, Cuellar was not unexpectedly forced to explain his
presence after presenting his alibi, and unlike Camargo-Vergara, Cuellar was not
unexpectedly forced to explain his apparent knowledge of drugs after emphasizing
that he wanted nothing to do with them. Noe, 821 F.2d at 607-08; Camargo-
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Vergara, 57 F.3d at 999. Cuellar argues his trial strategy was to attack the
accuracy of what the FBI agents claimed he told them, which was the only direct
evidence linking him to the child pornography. However, the other evidence
against him was significant. Because Cuellar was not substantially prejudiced, the
district court did not abuse its discretion in denying his motion for mistrial.
Chastain, 198 F.3d at 1348; see also United States v. Perez-Oliveros, 479 F.3d
779, 782 (11th Cir. 2007) (stating we review the district court’s denial of a motion
for mistrial for an abuse of discretion).
B. Sentencing Enhancements
Next, Cuellar asserts the district court improperly applied sentencing
enhancements for sadistic content, distribution, use of a computer, and the number
of images. He contends the Sentencing Commission exceeded its authority in
eliminating the intent requirement for violent depictions because it renders the
enhancement arbitrary and because it violates due process. Cuellar argues the
enhancement for distribution by definition requires a showing of intent because
“distributing” means more than merely “making available.” He also asserts the
enhancement for using a computer is double-counting, and the guideline used in
this case was not created through the Sentencing Commission’s normal process
and thus yields disproportionate results.
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We review for clear error the district court’s factual findings; review de novo
the district court’s legal interpretations of the sentencing guidelines, including
rejection of double-counting challenges; and review de novo the district court’s
application of the Sentencing Guidelines to the facts. United States v. Cubero, 754
F.3d 888, 892 (11th Cir.), cert. denied 135 S. Ct. 764 (2014).
Cuellar’s arguments are without merit. First the district court did not err in
imposing the §2G2.2(b)(4) enhancement for sadistic or masochistic conduct.
Cuellar does not dispute the files included sadistic content or that the Sentencing
Guidelines do not require the Government to prove intent, see U.S.S.G. §2G2.2,
comment. (n.2); rather, his sole argument is that the enhancement is
unconstitutional without a finding of intent. But even if such a finding were still
required, Cuellar’s intent could have been inferred from the file names themselves.
Cf. United States v. Garrett, 190 F.3d 1220, 1224 (11th Cir. 1999) (concluding that
intending to receive photographs that depicted young children who were vaginally
and anally penetrated by adult men, as well as a photograph of a young girl who
was vaginally penetrated by a glass bottle, was sufficient to meet the intent
requirement of the sadistic content enhancement). Here, many of the file names
included the abbreviation “PTHC,” indicating the files contained “preteen
hardcore” content. Other files had similarly graphic titles that revealed their
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content. As such, the district court did not err in applying the sadistic content
enhancement.
Second, the district court did not err in applying the enhancement for
distribution. This Court has concluded the distribution enhancement can be
applied when an offender uses a peer-to-peer file sharing program: “Allowing files
to be accessed on the Internet by placing them in a file sharing folder is akin to
posting material on a website for public viewing. When the user knowingly makes
the files accessible to others, the distribution is complete.” United States v.
Spriggs, 666 F.3d 1284, 1287 (11th Cir. 2012).
Special Agent Johns testified that Cuellar installed Ares onto his computer.
Johns explained that Ares users shared files out of their “my shared folder.” While
the “my shared folder” was the default setting in Ares, it could be disabled by the
user. Furthermore, the transfer screen in Ares showed both the files that were
being downloaded as well as the files that were being shared to other users.
Cuellar could have changed the settings in Ares to prevent file-sharing or could
have saved the files in a folder not susceptible to file sharing, but he instead left the
files in his shared folder accessible to other users. Cf. United States v. Vadnais,
667 F.3d 1206, 1208-09 (11th Cir. 2012) (noting in dicta that a user could change
the default settings or could remove the files from the shared folder). As such, the
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district court did not err in applying the distribution enhancement. Spriggs, 666
F.3d at 1287.
Third, the district court did not err in applying the computer enhancement.
This Court has concluded the sentencing enhancements under § 2G2.2 are meant to
apply cumulatively, since § 2G2.2 is structured so that the range of harms
associated with child pornography can be addressed through various offense level
increases and decreases. Cubero, 754 F.3d at 895 (deciding in the context of
§ 2G2.2(b)(3)(F)). As such, Cuellar’s sentence did not constitute impermissible
double-counting. See id.
Fourth, Cuellar’s final argument—that the pertinent guideline in this case
was not created through the Sentencing Commission’s normal process and yields
disproportionate recommendations—is likewise without merit. Despite Cuellar’s
argument that Congress has directed that child pornography penalties be made
hasher over the Sentencing Commission’s objection, the Supreme Court has noted
that “the Commission is fully accountable to Congress, which can revoke or amend
any or all of the Guidelines as it sees fit.” Mistretta v. United States, 488 U.S. 361,
393-94 (1989).
C. Variance
Finally, Cuellar argues the district court abused its discretion by not granting
his motion for a downward variance. Cuellar argues the child pornography
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guidelines are not the product of the Sentencing Commission’s usual empirically
grounded procedures and thus are entitled to far less weight than the typical
guideline provision under Kimbrough v. United States, 552 U.S. 85 (2007).
Because the district court sentenced Cuellar within that unreasonable range, his
sentence was unreasonable.
We review a sentence for abuse of discretion, using a two-step process.
United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008). We first ensure that
the district court did not commit any significant procedural errors and, if none were
made, then determine whether the sentence is substantively reasonable in light of
the 18 U.S.C. § 3553(a) factors and the totality of the circumstances. Id. at 1190–
91. The burden of establishing that a sentence is unreasonable lies with the party
challenging the sentence. Id. at 1189.
Cuellar’s sole argument is that the guideline applicable to child pornography
is not empirically grounded and that the district court should have exercised its
discretion to impose a below-guidelines sentence under Kimbrough. We have
already rejected a Kimbrough-type challenge to the child pornography guidelines,
concluding that their history and nature distinguish them from the crack cocaine
guidelines in Kimbrough. See Pugh, 515 F.3d at 1201 n.15. Furthermore,
Kimbrough concluded that a district court may—but is not required to—deviate
from the guidelines in a crack cocaine case because the crack/powder disparity
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might yield a sentence greater than necessary to achieve the purposes of § 3553(a),
not that the district court must lower a sentence when the guideline is not
supported by empirical data. 552 U.S. at 110.
As such, Cuellar has failed to meet his burden in showing that his sentence
was unreasonable, and we affirm his sentence. See Pugh, 515 F.3d at 1189–92.
II. CONCLUSION
There was no substantial prejudice to Cuellar’s defense, and the district
court did not abuse its discretion in denying Cuellar’s motion for mistrial.
Furthermore, the district court did not err in using the sentencing enhancements to
calculate the appropriate guidelines range. Finally, the district court did not abuse
its discretion by denying Cuellar a downward variance, since the sentence imposed
was both procedurally and substantively reasonable. Accordingly, we affirm
Cuellar’s conviction and sentence.
AFFIRMED.
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