USCA11 Case: 21-12286 Date Filed: 04/01/2022 Page: 1 of 5
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12286
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICTOR ELIAS,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 7:19-cr-00037-HL-TQL-1
____________________
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2 Opinion of the Court 21-12286
Before WILSON, JILL PRYOR, and BRANCH, Circuit Judges.
PER CURIAM:
Defendant-Appellant Victor Elias appeals his 120-month
sentence that he received after pleading guilty to one count of pos-
session of child pornography. First, 1 he argues that the mandatory
minimum sentence imposed by
18 U.S.C. § 2252(b)(2) violates the
Eighth Amendment because it prevents the district court from ex-
ercising its discretion in sentencing. Second, he argues that
U.S.S.G. § 2G2.2(b)(4) is unconstitutional because it is vague under
the Due Process Clause, of presumably the Fifth Amendment, and
allows for arbitrary enforcement because it does not clarify what
the terms “sadistic” or “masochistic” mean. Lastly, he argues that
his sentence was substantively unreasonable. After careful review,
we affirm.
Turning to Elias’s first argument, we review the legality of a
sentence, such as under the Eighth Amendment, de novo. United
States v. Moriarty,
429 F.3d 1012, 1023 (11th Cir. 2005) (per cu-
riam). The Eighth Amendment prohibits the infliction of “cruel
and unusual punishments.” U.S. Const. amend. VIII. The Su-
preme Court has made clear that “[s]evere, mandatory penalties
may be cruel, but they are not unusual.” Harmelin v. Michigan,
501 U.S. 957, 994 (1991) (emphasis added). Accordingly,
1 We have reordered and separated Elias’s arguments for clarity.
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21-12286 Opinion of the Court 3
mandatory minimum sentences in non-capital cases are constitu-
tional. See
id.
Here, Elias pleaded guilty to one count of possession of child
pornography in violation of
18 U.S.C. § 2252(b)(2)—knowingly
possessing or accessing with intent to view a visual depiction of a
minor engaging in sexually explicit conduct—which carries a man-
datory minimum sentence of 120 months.
18 U.S.C.
§ 2252(a)(4)(B). We are bound by the Supreme Court’s holding
that mandatory minimum sentences in non-capital cases are con-
stitutional. 2 See Harmelin,
501 U.S. at 994. Thus, Elias’s manda-
tory minimum sentence of 120 months does not violate the Eighth
Amendment.
Turning to Elias’s second argument, we review a constitu-
tional challenge to the guidelines, when appropriate, de novo.
United States v. Matchett,
802 F.3d 1185, 1191 (11th Cir. 2015). But
if a sentence would be the same regardless of a potential error, we
have the discretion to forgo discussion of the alleged error. See
United States v. Rice,
43 F.3d 601, 608 n.12 (11th Cir. 1995). Specif-
ically, we have noted that, when the district court correctly im-
poses a statutory mandatory minimum sentence greater than a de-
fendant’s guideline range, “any error in the guidelines calculations
2 We have also found that mandatory minimums are not unconstitutional. See
United States v. Farley,
607 F.3d 1294, 1345 (11th Cir. 2010) (finding that the
mandatory minimum for violating 18 U.S.C. 2241(c) (aggravated sexual abuse
with a child) did not violate the Eighth Amendment against cruel and unusual
punishment).
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4 Opinion of the Court 21-12286
is harmless and we need not address these arguments.” United
States v. Raad,
406 F.3d 1322, 1323 n.1 (11th Cir. 2005) (per curiam).
Because Elias’s sentence would remain the same, the man-
datory minimum of 120 months as required by statute, any possible
guideline error was harmless. Thus, we do not need to address
Elias’s Due Process Clause challenge.
Lastly, Elias makes the conclusory assertion in his Statement
of Issues that his sentence is unreasonable. We review whether the
district court’s sentence is reasonable for an abuse of discretion.
Gall v. United States,
552 U.S. 38, 51 (2007). The appellant has the
burden of proving that his “sentence is unreasonable in light of the
entire record, the
18 U.S.C. § 3553(a) factors, and the substantial
deference afforded sentencing courts.” United States v. Rosales-
Bruno,
789 F.3d 1249, 1256 (11th Cir. 2015).
However, when fashioning a reasonable sentence under §
3553(a), a court may not sentence a defendant below a mandatory
minimum. United States v. Castaing-Sosa,
530 F.3d 1358, 1362
(11th Cir. 2008). Section 3553(a) “does not confer upon the district
court the authority to sentence a defendant below the statutory
mandatory minimum based on its consideration of the § 3553(a)
factors.” Id. at 1361. The Supreme Court “made advisory the Sen-
tencing Guidelines, not statutory mandatory minimums enacted
by Congress,” and thus § 3553(a) does not apply. Id. at 1362 (citing
United States v. Booker,
543 U.S. 220 (2005)). Thus, Elias’s sen-
tence is not substantively unreasonable because the district court
properly imposed the statutory minimum sentence of 120 months.
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21-12286 Opinion of the Court 5
Accordingly, we find no error in the district court sentencing
Elias to the mandatory minimum of 120 months as required by stat-
ute.
AFFIRMED.
