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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-15989
Non-Argument Calendar
________________________
D.C. Docket No. 3:09-cr-00387-TJC-MCR-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
ROBERT ALLAN COWAN,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(November 19, 2012)
Before DUBINA, Chief Judge, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
Appellant Robert Allan Cowan appeals his convictions and total 1,680-
month sentence for three counts of sexual exploitation of a minor through the
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receipt of child pornography, in violation of
18 U.S.C. § 2252(a)(2); two counts of
sexual exploitation of a minor through the production of child pornography, in
violation of
18 U.S.C. § 2251(a); and two counts of sexual exploitation of a minor
through the possession of child pornography, in violation of
18 U.S.C.
§ 2252(a)(4)(B). On appeal, Cowan argues that: (1) the district court admitted
impermissible expert testimony at trial; (2) there was insufficient evidence to
support his possession and receipt convictions; (3) the court failed to adequately
explain the reasons for its sentence; (4) the court made numerous guideline
calculation errors; and (5) the 1,680 month sentence imposed was substantively
unreasonable. Cowan alleges that the court made eight errors in calculating his
guideline range, arguing that the court improperly: (1) calculated the base offense
level for the group of convictions that included his receipt and possession
convictions; (2) imposed the four-level U.S.S.G. § 2G2.2(b)(4) depiction of
sadistic or masochistic conduct enhancement; (3) imposed the five-level
§ 2G2.2(b)(5) pattern of activity of sexual abuse enhancement; (4) calculated the
number of images attributable to Cowan, resulting in a five-level § 2G2.2(b)(7)(D)
enhancement; (5) imposed the two-level § 3C1.1 obstruction of justice
enhancement to his production convictions; (6) failed to apply the two-level
2G2.2(b)(1) reduction; (7) imposed the 2G2.1(b)(2)(A) commission of a sexual act
enhancement to his production counts; and (8) calculated the multiple count
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adjustment. After reviewing the record and reading the parties’ briefs, we affirm
Cowan’s conviction and his total sentence.
I.
We generally review decisions regarding the admissibility of expert
testimony for abuse of discretion. United States v. Frazier,
387 F.3d 1244, 1258
(11th Cir. 2004) (en banc). When an appellant did not contemporaneously object
to an evidentiary ruling below, we are limited to review for plain error. United
States v. Turner,
474 F.3d 1265, 1275 (11th Cir. 2007). Plain error is: (1) an error;
(2) that is plain; and (3) affects substantial rights. But we will only correct such
error if the error seriously affects the fairness, integrity, or public reputation of
judicial proceedings.
Id. at 1275–76.
Federal Rule of Evidence 702 governs the admissibility of expert testimony.
A qualified witness may offer expert testimony if: (a) the witness’s scientific,
technical or specialized knowledge is helpful to a trier of fact; (b) the testimony is
based on sufficient facts or data; (c) the testimony is the product of reliable
principles and methods; and (d) the witness reliably applied the principles and
methods to the facts of the case. Fed. R. Evid 702. Under Daubert, the trial court
must determine whether an expert’s testimony is based on reasoning or
methodology that is scientifically valid and whether that methodology can be
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applied to the facts at issue. Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579,
592–93,
113 S. Ct. 2786, 2796 (1993).
Where a witness is not qualified as an expert, he may nonetheless offer
opinion testimony pursuant to Federal Rule of Evidence 701. Opinion testimony is
admissible so long as it is: (a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the testimony or to determining a fact in issue;
and (c) not based on knowledge within the scope of Rule 702. Fed. R. Evid. 701.
A witness may give otherwise admissible opinion testimony that affects an
ultimate issue in a case unless that opinion concerns the mens rea of a criminal
defendant. Fed. R. Evid. 704.
A police officer witness’s conclusion that images are pornographic in nature
does not require qualification as an expert, and is admissible subject to the Rule
701 requirements. United States v. Smith,
459 F.3d 1276, 1297 n.18 (11th Cir.
2006). In Smith, the appellant argued that the officer’s testimony was improper
opinion evidence offered by a non-expert.
Id. We held that it was not plain error
when the district court failed to strike that testimony for violating Rule 702. See
id. at 1296–97 & n.18.
Cowan’s argument on appeal is that ICE Special Agent James Greenmun
offered impermissible expert testimony when he testified that the photographs
Cowan took of his daughter constituted pornography. On appeal, Cowan raises
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only Rule 702 and Daubert as reasons why Greenmun’s testimony should not have
been admitted.
Cowan did not raise an objection to the challenged testimony in the district
court, so we review this issue for plain error only. See Turner,
474 F.3d at 1275.
While the court, without objection, qualified Greenmun as an expert, his expertise
was limited to computer forensics. His testimony that Cowan’s photographs
constituted pornography was an opinion separate from the expert testimony he was
qualified to offer. Under Smith, Rule 702 does not govern a witness’s opinion
testimony that an image constituted pornography. See Smith,
459 F.3d at 1297
n.18. Therefore, Cowan’s argument on appeal fails to meet step one of plain error
review.
II.
We review de novo whether sufficient evidence supports a conviction,
drawing all reasonable factual inferences from the evidence in favor of the verdict.
United States v. Beckles,
565 F.3d 832, 840 (11th Cir. 2009). Evidence is
sufficient to support a conviction if a reasonable trier of fact could find that it
established guilt beyond a reasonable doubt.
Id.
Under
18 U.S.C. § 2252(a)(2), it is a crime to knowingly receive material
containing a depiction of a minor engaging in sexually explicit conduct. Under
18
U.S.C. § 2252(a)(4)(B), it is a crime to knowingly possess material containing a
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depiction of a minor engaging in sexually explicit conduct. The word “knowingly”
in § 2252 applies both to the relevant action, such as receipt, and to the nature of
the material in question. See United States v. X-Citement Video, Inc.,
513 U.S. 64,
68–69, 78,
115 S. Ct. 464, 467, 472 (1994) (assuming, in a § 2252(a)(2)
conviction, that “knowingly” applied to the relevant action, and holding that the
mens rea extended to the nature of the material as well).
We have previously applied the X-Citement Video reasoning to a
§ 2252(a)(4)(B) possession of child pornography conviction. See United States v.
Alfaro-Moncada,
607 F.3d 720, 733 (11th Cir. 2010), cert. denied, ___ U.S. ___,
131 S. Ct. 1604 (2011). In Alfaro-Moncada, we held that there was sufficient
evidence to support the appellant’s knowing possession of child pornography
where the appellant: possessed DVDs that had covers that suggested that they
contained child pornography; admitted to watching a “little bit” of the videos; and,
although he had testified that he intended to dispose of the videos, placed the
DVDs in his desk drawer.
Id. at 732–34.
Where a defendant testifies at trial, he runs the risk that the jury might
disbelieve him and conclude that the opposite of his testimony is true. United
States v. Williams,
390 F.3d 1319, 1325 (11th Cir. 2004). Accordingly, where
there is some corroborative evidence of a defendant’s guilt, the defendant’s
testimony denying guilt may, by itself, establish elements of the offense.
Id. at
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1326. We have previously noted that this rule is particularly relevant where the
testimony concerns subjective elements such as the defendant’s intent or
knowledge.
Id.
Cowan’s only argument regarding sufficiency of the evidence on appeal is
that insufficient evidence supported a conclusion that he had the requisite mens rea
to commit the receipt and possession offenses. However, there was sufficient
evidence, granting every reasonable inference in favor of the verdict, to support a
conclusion that Cowan knew that: (1) he received material containing child
pornography; and (2) he possessed material containing child pornography.
Cowan testified that he inadvertently received the files containing child
pornography when he searched on Lime Wire for martial arts and naval videos,
using search terms like “torpedo.” He also testified that he never knowingly
downloaded a file if it had a file name that was indicative of child pornography,
and if he did accidentally download such a file, he would delete it as soon as he
saw the file name. The jury was free to disbelieve that testimony, and conclude
that the opposite was true. See Williams,
390 F.3d at 1325. A conclusion that
Cowan knowingly received the files can be corroborated by the fact that, despite
his testimony that he would delete files with file names indicative of child
pornography, he had files with such names on his media devices. See Alfaro-
Moncada,
607 F.3d at 733 (evidence that defendant had seen DVD covers that
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indicated the videos contained child pornography was corroborative of his
knowledge of the DVDs’ contents). Cowan admitted that he knew that the file
names were indicative of child pornography, because he kept a list of terms that
were used to identify files that had child pornography. Since there was evidence
corroborating Cowan’s guilt, his testimony denying guilt supported his convictions
for receiving child pornography, particularly because Cowan was testifying
regarding his subjective intent. See Williams,
390 F.3d at 1326.
Cowan’s testimony that he intended to delete all of the child pornography
from his media devices, even though child pornography was found on his external
hard drives, also supported his possession convictions. See Alfaro-Moncada,
607
F.3d at 733–34 (defendant’s testimony that he intended to dispose of child
pornography did not render evidence of guilt insufficient where the defendant was
later found to have not disposed of the material shortly after discovering the nature
of its contents). Cowan’s testimony that he was familiar with how to store
information on computers and external hard drives, and that it was easy to transfer
files from one device to another, corroborated the conclusion that he knowingly
possessed the files on his external hard drives.
III.
We typically review the reasonableness of a sentence under a deferential
abuse of discretion standard of review. Gall v. United States,
552 U.S. 38, 41, 128
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25
S. Ct. 586, 591,
169 L. Ed. 2d 445 (2007). Whether the district court sufficiently
explained its sentence under
18 U.S.C. § 3553(c)(1) is reviewed de novo, even if
the defendant did not raise that issue as an objection below. United States v.
Bonilla,
463 F.3d 1176, 1181 (11th Cir. 2006). The party challenging the sentence
has the burden of establishing that the sentence was unreasonable. United States v.
Talley,
431 F.3d 784, 788 (11th Cir. 2005) (per curiam). A party abandons all
issues on appeal that he does not plainly and prominently raise in his initial brief.
United States v. Jernigan,
341 F.3d 1273, 1283 n.8 (11th Cir. 2003).
In reviewing the reasonableness of a sentence, we first consider whether the
district court committed a procedural error, such as failing to calculate or
improperly calculating the guidelines range. Gall,
552 U.S. at 51,
128 S. Ct. at
597. This court also ensures that the district court treated the guidelines as
advisory, considered the § 3553(a) factors, did not select a sentence based on
clearly erroneous facts, and adequately explained the chosen sentence. Id. While a
sentencing court is not required to state on the record that it has explicitly
considered each of the § 3553(a) factors or to discuss each factor, it should set
forth enough to satisfy us that it “has considered the parties’ arguments and has a
reasoned basis for exercising [its] legal decision-making authority. United States
v. Agbai,
497 F.3d 1226, 1230 (11th Cir. 2007) (per curiam); Talley,
431 F.3d at
786. The court’s acknowledgment that it has considered the § 3553(a) factors
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together with the parties’ arguments is typically sufficient. Talley,
431 F.3d at 786.
The appropriateness of the brevity or length of a district court’s reasons for
accepting or rejecting an argument depends upon the circumstances and leaves
much to the court’s own professional judgment. Rita v. United States,
551 U.S.
338, 356,
127 S. Ct. 2456, 2468 (2007).
As an initial matter, Cowan abandoned any argument that the district court
failed to adequately explain his sentence. See Jernigan,
341 F.3d at 1283 n.8. In
his brief, he only raises one sentence of argument and does not point to any part of
the record that he alleges was deficient.
In any event, the district court stated that it had considered all of the
statements and evidence offered during the sentencing hearing. It also, at length,
discussed the § 3553(a) factors and how they applied to Cowan. Before imposing
its sentence, the court reiterated that it had considered the statutory minimums and
maximums, the guideline range, and the § 3553(a) factors. Accordingly, the
district court sufficiently demonstrated that it had considered the parties’
arguments and had a reasoned basis for exercising its legal decision-making
authority. Thus, we conclude it did not abuse its discretion. See Agbai,
497 F.3d
at 1230; Talley,
431 F.3d at 786.
IV.
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We review de novo a district court’s interpretation of the Sentencing
Guidelines and the application of law to sentencing issues. United States v.
Alexander,
609 F.3d 1250, 1253 (11th Cir. 2010), cert. denied, ___ U.S. ___,
131
S. Ct. 1783 (2011). With respect to particular enhancements, we review de novo
the district court’s application of an enhancement, and we review for clear error its
factual findings that support the enhancement. United States v. Hall,
312 F.3d
1250, 1260 n.12 (11th Cir. 2002). The court may base its findings of fact on
evidence from the trial, sentencing hearing, or undisputed statements in the PSI.
United States v. Wilson,
884 F.2d 1355, 1356 (11th Cir. 1989). A misapplication of
the guidelines should not result in a reversal of an otherwise reasonable sentence if
it is clear that the error did not affect the court’s sentence. United States v. Keene,
470 F.3d 1347, 1350 (11th Cir. 2006). When interpreting the Sentencing
Guidelines, this Court uses traditional rules of statutory construction. United
States v. Mandhai,
375 F.3d 1243, 1247 (11th Cir. 2004). Absent ambiguity, a
guideline provision’s meaning is derived from its plain language.
Id.
U.S.S.G. § 1B1.1 provides instructions on how to apply the guidelines to a
particular sentence, including the order in which guidelines provisions should be
applied. See U.S.S.G. § 1B1.1(a). After determining the applicable guideline
offense section, the court should determine the base offense level for each
conviction, applying any specific offense characteristics, cross references, and
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special instructions in the order that they are listed. Id. § 1B1.1(a)(2). After
applying any applicable Chapter Three adjustments, the court should then, if there
are multiple counts of conviction, repeat the first three steps for each count of
conviction and “[a]pply Part D of Chapter Three to group the various counts and
adjust the offense level accordingly.” Id. § 1B1.1(a)(4). The commentary to
§ 1B1.1 provides that, where “two or more guideline provisions appear equally
applicable” the court should use the provision that results in the greater offense
level. Id. § 1B1.1 cmt. n.5.
The offense levels for convictions under
18 U.S.C. § 2252 are calculated
pursuant to U.S.S.G. § 2G2.2. See U.S.S.G. § 2G2.2 cmt. The base offense level
for a conviction under
18 U.S.C. § 2252(a)(4) is 18. U.S.S.G. § 2G2.2(a)(1). The
base offense level for a conviction under
18 U.S.C. § 2252(a)(2) is 22. See
U.S.S.G. § 2G2.2(a)(2).
When a defendant has multiple counts of conviction, the court shall group
the counts pursuant to U.S.S.G. § 3D1.2 and determine the offense level for each
group pursuant to § 3D1.3. U.S.S.G. § 3D1.1(a)(1), (2). Convictions covered by
§ 2G2.2 “are to be grouped” together. Id. § 3D1.2(d). In calculating the base
offense level for a group of convictions that “involve offenses of the same general
type to which different guidelines apply,” the court should “apply the offense
guideline that produces the highest offense level.” Id. § 3D1.3(b).
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The guidelines call for a four-level increase if “the offense involved material
that portray[ed] sadistic or masochistic conduct or other depictions of
violence . . . .” U.S.S.G. § 2G2.2(b)(4). We have previously held that this
enhancement is warranted if: (1) the minor in the image is a young child; and
(2) the image portrays vaginal or anal penetration of the young child by an adult
male. Hall,
312 F.3d at 1261–63. Such conduct “would necessarily be painful”
and is therefore sufficient to meet the sadistic prong of the enhancement.
Id. at
1262–63, 1262 n.15. In Hall, we said that a child younger than 12 sufficiently
meets the “young child” standard.
Id. at 1263.
We have also held that, in order for the depiction of sadistic conduct
enhancement to apply, there must be evidence that the defendant intended to
possess material depicting minors engaging in sadistic, masochistic, or violent acts.
United States v. Tucker,
136 F.3d 763, 764 (11th Cir. 1998) (per curiam). We
subsequently held that the enhancement was warranted where there was evidence
that the defendant had the intent to receive the photographs that depicted adult men
vaginally and anally penetrating young children. See United States v. Garrett,
190
F.3d 1220, 1224 (11th Cir. 1999). However, the guidelines commentary now
instructs that the enhancement should apply “regardless of whether the defendant
specifically intended to possess . . . such materials.” U.S.S.G. § 2G2.2 cmt. n.2.
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The commentary regarding the intent of the defendant was added in 2004, after our
decision in Tucker. See U.S.S.G. app. C, amend. 664.
The guidelines call for a five-level specific offense characteristic increase if
the defendant “engaged in a pattern of activity involving the sexual abuse or
exploitation of a minor . . . .” U.S.S.G. § 2G2.2(b)(5). The guidelines commentary
defines a pattern of activity as “any combination of two or more separate instances
of the sexual abuse or sexual exploitation of a minor by the defendant . . . .” Id.
§ 2G2.2 cmt. n.1. It defines “sexual abuse or exploitation of a minor” as, inter
alia, conduct described in § 2251(a). Id. The enhancement applies whether or not
the abuse or exploitation: (1) occurred during the course of the offense;
(2) involved the same minor; or (3) resulted in a conviction. Id. We have held that
two or more separate instances of abuse or exploitation of a minor is all that is
needed to apply the enhancement. United States v. Turner,
626 F.3d 566, 573
(11th Cir. 2010) (per curiam).
The guidelines call for a 5-level specific offense characteristic increase if the
offense involved the possession of 600 or more images. U.S.S.G.
§ 2G2.2(b)(7)(D). Under the commentary, each video is considered to have 75
images. Id. § 2G2.2 cmt. n.4(B)(ii).
In considering whether images found in a cache, or temporary internet
folder, can serve as the basis of a receipt of pornography conviction, we have held
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that images in such a folder can be attributed to the defendant when he
intentionally viewed, acquired, or accepted the images, even if he did not intend to
save the images to his computer. United States v. Pruitt,
638 F.3d 763, 766 (11th
Cir. 2011) (per curiam), cert. denied, ___U.S. ___,
132 S. Ct. 113 (2011). Cowan
cites a Ninth Circuit case (also cited in Pruitt) to argue that images found in a
cache folder should not be attributed to a defendant. United States v. Romm,
455
F.3d 990 (9th Cir. 2006). However, in Romm, the Ninth Circuit concluded that,
absent evidence that the images went into such a folder without any action by the
defendant, the defendant possessed the images found therein. See
id. at 998, 1000–
01.
The guidelines call for a two-level enhancement where a defendant wilfully
obstructed or impeded the administration of justice in relation to the offense of
conviction. U.S.S.G. § 3C1.1. The adjustment can be applied where a defendant
commits perjury pertaining to the conduct that is the basis of the offense of
conviction. Id. § 3C1.1 cmt. n.4(B). When basing an obstruction of justice
enhancement on perjury, the district court must find that the defendant gave
perjured testimony on a material matter. United States v. Vallejo,
297 F.3d 1154,
1168 (11th Cir. 2002). It is preferable that the district court specifically identify
each materially false statement individually.
Id.
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The guidelines call for a two-level reduction where the defendant’s conduct
was limited to the receipt or solicitation of child pornography, and the defendant
did not intend to traffic or distribute the pornographic material. U.S.S.G.
§ 2G2.2(b)(1). The defendant has the burden to prove that a guideline reduction
applies to him. United States v. Zaldivar,
615 F.3d 1346, 1352 (11th Cir. 2010),
cert. denied, ___ U.S. ___,
131 S. Ct. 959 (2011). For the purposes of determining
the guideline range, including the application of specific offense characteristics,
the court should consider “all acts and omissions committed . . . during the
commission of the offense of conviction.” U.S.S.G. § 1B1.3(a)(1). We broadly
interpret what constitutes relevant conduct under the guidelines. United States v.
Behr,
93 F.3d 764, 765 (11th Cir. 1996) (per curiam). We have held that, under
the guidelines, the court may enhance a defendant’s sentence based on the
possession of certain pornographic images, even if his conviction was based on the
transmission of entirely different images, so long as both occurred simultaneously.
See United States v. Dunlap,
279 F.3d 965, 966 (11th Cir. 2002) (per curiam).
The guidelines call for a two-level increase to a production of child
pornography conviction if the offense involved “the commission of a sexual act or
sexual contact . . . .” U.S.S.G. § 2G2.1(b)(2)(A). The term “sexual act” includes,
inter alia, “contact between the mouth and the penis” and “the intentional
touching, not through the clothing, of the genitalia of another person who has not
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attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or
arouse or gratify the sexual desire of any person.” Id. § 2G2.1 cmt. n.2;
18 U.S.C.
§ 2246(2). The term “sexual contact” means “the intentional touching, either
directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or
buttocks of any person with an intent to abuse, humiliate, harass, degrade, or
arouse or gratify the sexual desire of any person.” U.S.S.G. § 2G2.1 cmt. n.2;
18
U.S.C. § 2246(3).
The procedure for determining the offense level when there are multiple
counts of conviction is governed by U.S.S.G. § 3D1.1. First, the court groups the
offenses under § 3D1.2; then the court determines the offense level for each group
under § 3D1.3; then if there are multiple groups, the court determines the
combined offense level under § 3D1.4. U.S.S.G. § 3D1.1(a). Where there are
multiple groups of convictions, the court should assign the group with the highest
offense level one unit, then assign one additional unit to each group that has an
offense level within four levels of the most serious group. Id. § 3D1.4(a). The
offense level for the most serious group is then increased based on the total number
of units in accordance with the § 3D1.4 chart. Id. § 3D1.4 cmt. n.2.
Cowan’s possession and receipt convictions were all grouped together,
pursuant to U.S.S.G. § 3D1.2(d). Cowan is correct in asserting that his possession
convictions, if either was his lone conviction, would have carried a base offense
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level of 18. See U.S.S.G. § 2G2.2(a)(1). However, Cowan’s receipt convictions,
had any of them been a lone count of conviction, would have had a base offense
level of 22. See U.S.S.G. § 2G2.2(a)(2). Under the grouping rules, the court
should use the offense guideline that produces the highest offense level among the
grouped convictions. See U.S.S.G. § 3D1.3(b). Therefore, the district court
properly determined the base offense level for Group One to be 22. The district
court reached a base offense level of 22 through a misapplication of U.S.S.G.
§ 1B1.1 cmt. n.5. However, that commentary note, by its own text, should only
apply “where two or more guideline provisions appear equally applicable.”
U.S.S.G. § 1B1.1 cmt. n.5. Since the grouping rules clearly define which offense
level should apply, there are not two equally applicable guideline provisions.
Nevertheless, since the court used the correct base offense level, the guideline
range was unaffected, and the sentence that it imposed surely would not have been
different. See Keene,
470 F.3d at 1350.
The court did not err in imposing the § 2G2.2(b)(4) depiction of sadistic or
masochistic conduct enhancement. Since Cowan raised no objection to the factual
portion of the PSI, the facts contained therein can be used to support the district
court’s findings of fact. See Wilson,
884 F.2d at 1356. The PSI contained
descriptions of some of the images and videos found in Cowan’s possession.
According to the descriptions, several of the images and videos depicted an adult
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male vaginally or anally penetrating young girls, some of whom were described as
infants. Cowan’s argument that there was no evidence that he had the intent to
possess sadistic images and videos is not persuasive. First, the guidelines
commentary now instructs that such a showing is not necessary. See U.S.S.G.
§ 2G2.2, comment. (n.2). Even if such a finding was still required, the file names
of several of the images and videos suggested that they contained depictions of
adults vaginally or anally penetrating very young girls. Cowan’s intent can be
inferred from the file names. Therefore, it was not clear error for the district court
to conclude that Cowan intended to possess depictions of sadistic conduct. See
Garrett,
190 F.3d at 1224.
The court did not err in imposing the five-level pattern of activity of sexual
abuse enhancement. The guidelines commentary specifically lists conduct
described in § 2251(a) as conduct that warrants the enhancement. See U.S.S.G.
§ 2G2.2 cmt. n.1. Cowan was convicted of two instances of having committed
conduct that violated § 2251(a). Therefore, the court did not clearly err in finding
that the § 2G2.2(b)(5) enhancement was warranted.
The court also did not err in concluding that Cowan possessed more than
600 images depicting child pornography, warranting the five-level
§ 2G2.2(b)(7)(D) enhancement. Cowan’s only argument on appeal is that the
district court failed to account for images that were contained only in temporary
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internet, or cache, folders. However, Cowan does not point to any image or video
that he asserts was found in such a folder. Moreover, only considering the videos
found on Cowan’s external hard drives, there was evidence of more than 600
images. There was trial testimony that there were seven videos on the Toshiba
external hard drive and four videos on the Maxtor external hard drive. Those 11
videos, each counting as 75 images, constituted 825 images. See U.S.S.G. § 2G2.2
cmt. n.4(B)(ii).
Cowan abandoned any argument concerning the two-level § 3C1.1
obstruction of justice enhancements applied to his production convictions. While
he summarizes the law regarding the obstruction of justice enhancement, Cowan
presents no real argument on appeal identifying any error by the district court. See
Jernigan,
341 F.3d at 1283 n.8. Even if properly raised, Cowan’s argument lacks
merit. The court made specific findings of perjury as to both production counts
and specifically identified the false testimony that it believed applied to each. See
Vallejo,
297 F.3d at 1168. Cowan testified that he did not intend for the pictures
that constituted either count to be pornographic in nature and that it was only after
reviewing the photos later that he realized they may have been problematic. The
court found that, based on the obviously sexual nature of the photographs,
Cowan’s testimony was perjured, and that it was material because it went to his
intent. Since some of the images in both counts focused on the victim’s genitalia,
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and at least one of the images depicted the victim grabbing her genitalia, the
district court’s conclusion was not clearly erroneous.
The district court did not err in declining to impose the two-level
§ 2G2.2(b)(1) reduction to Cowan’s possession and receipt convictions. Under the
guidelines and Dunlap, Cowan’s “conduct” includes all conduct that occurred
during his commission of the Group One offenses. See Dunlap,
279 F.3d at 966.
Simultaneous to his possession of the Group One images, Cowan possessed
pornographic images that he produced depicting his daughter. Therefore, it was not
clear error for the court to conclude that Cowan’s conduct and intent were not
limited to the receipt or solicitation of child pornography.
The court also did not err in imposing the two-level § 2G2.1(b)(2)(A)
commission of a sexual act enhancement. Cowan’s only argument on appeal is
that no “willful action” was demonstrated. That argument is belied by the court’s
finding of molestation, which was supported by the PSI. It was not clear error for
the court to have concluded that Cowan acted willfully in molesting his daughter.
Last, Cowan has demonstrated no error on appeal in the court’s multiple
count calculations. Cowan’s brief states that he is appealing the § 3D1.4 multiple
count adjustment. The only argument present in his brief is a recitation of his
objection below to the portions of the PSI that dealt with the multiple count
adjustment and “the determination of units calculated for [the § 3D1.4]
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adjustment,” because “the adjustment is ‘unfair and unreasonable since the conduct
involves the same victim in a discrete period of time.’” However, in support of
that argument, he cites exclusively to the commentary that accompanies § 3D1.2.
Section 3D1.2 applies only to the determination of what offenses should be
grouped together—not to the determination of how many units should be attributed
to each group. Therefore, we conclude that Cowan does not raise any relevant
argument on appeal that the court erred in performing the multiple count
adjustment. Cowan cannot be said to have properly raised the propriety of the
§ 3D1.2 grouping on appeal, since he explicitly states that he is appealing the
§ 3D1.4 calculation, and cites only to portions of the record that deal with the
§ 3D1.4 calculation.
V.
On substantive reasonableness review, we can “vacate the sentence if, but
only if, we are left with the definite and firm conviction that the district court
committed a clear error of 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), cert. denied, ___ U.S. ___,
131 S. Ct.
1813 (2011). The party challenging the sentence bears the burden to show it is
unreasonable. United States v. Tome,
611 F.3d 1371, 1378 (11th Cir. 2010), cert.
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denied, ___ U.S. ___,
131 S.Ct. 674 (2010). This court does not presume that a
sentence imposed within the guideline range is reasonable, but we ordinarily
expect sentences within the advisory guideline range to be reasonable. United
States v. Hunt,
526 F.3d 739, 746 (11th Cir. 2008).
Among the factors that the court should consider in sentencing are the
history and characteristics of the defendant, the guideline range, and the need for
the sentence to reflect the seriousness of the offense and to protect the public from
the defendant’s future crimes.
18 U.S.C. § 3553(a). The weight to be given any
particular factor in sentencing generally is left to the sound discretion of the district
court. United States v. Amedeo,
487 F.3d 823, 832 (11th Cir. 2007). The length of
the actual sentence imposed, as compared with the guidelines range and statutory
maximum, may be considered when reviewing reasonableness. United States v.
Gonzalez,
550 F.3d 1319, 1324 (11th Cir. 2008) (per curiam).
In Irey, we found a below-guidelines sentence for a defendant convicted of a
child sex crime substantively unreasonable. See Irey,
612 F.3d at 1224–25. In
reaching that conclusion, we noted that child sex crimes “are among the most
egregious and despicable of societal and criminal offenses,” and that the greater the
harm, the longer the sentence that should be imposed.
Id. at 1206 (internal
quotation marks omitted). We also noted that when child pornography is produced
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in conjunction with sexual abuse, the harm to the child victim is greater.
Id. at
1208.
We have previously affirmed a 100-year sentence as reasonable for a first-
time offender who sexually abused his step-daughter and took photographs of the
step-daughter performing sex acts on him, United States v. Sarras,
575 F.3d 1191,
1200–01, 1220 (11th Cir. 2009), and a 140-year sentence for a defendant who
pleaded guilty to producing pornographic images of three minor victims. United
States v. Johnson,
451 F.3d 1239, 1241, 1244 (11th Cir. 2006) (per curiam).
Cowan cites his health, psychological history, and lack of criminal history in
support of his argument that his total sentence was unreasonable. However, in his
argument, Cowan does not address the nature or the seriousness of the offenses for
which he was convicted. As we have previously stated, child sex crimes are
among the most serious criminal offenses. See Irey,
612 F.3d at 1206. The court,
in imposing the sentence, considered Cowan’s personal characteristics. It also
considered the seriousness of the offense, the need to protect the public, and the
guidelines. Balancing the factors, the court imposed the guideline range and
statutory maximum total sentence of 1,680 months. While Cowan asks us to
vacate that sentence in light of his personal history, we generally leave the decision
on how to weigh each factor to the discretion of the district court. See Amedeo,
487 F.3d at 832. Given the seriousness of the offenses, we conclude that the
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district court did not impose a total sentence that was “outside the range of
reasonable sentences.” See Irey,
612 F.3d at 1190. Thus, Cowan’s total sentence
is affirmed.
AFFIRMED.
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