USCA11 Case: 22-13884 Document: 25-1 Date Filed: 11/30/2023 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13884
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KURT BATUCAN SHELDON,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:20-cr-00118-TJC-MCR-1
____________________
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2 Opinion of the Court 22-13884
Before ROSENBAUM, JILL PRYOR, and TJOFLAT, Circuit Judges.
PER CURIAM:
Kurt Batucan Sheldon appeals his 262-month sentence,
which represents a downward variance from the 840-month guide-
lines sentence, for producing and distributing child pornography.
Sheldon contends that the District Court erred in two ways: first,
by imposing an unreasonable sentence, and second, by violating
the Eighth Amendment’s prohibition against cruel and unusual
punishment.
But Sheldon’s procedural reasonableness argument is fore-
closed by our established precedent and his substantive reasonable-
ness claim lacks merit because the District Court duly considered
the
18 U.S.C. § 3553(a) sentencing factors. As for his Eighth
Amendment argument, it fails because Sheldon cites no binding
precedent establishing that a sentence below the guidelines violates
the Eighth Amendment. Consequently, we affirm.
I. Background
In late May 2020, a Clay County Sheriff’s Office (CCSO)
Deputy learned that a 12-year-old minor victim (MV) had ex-
changed sexually explicit messages, pictures, and videos with an
adult male. This interaction began when MV posted on social me-
dia seeking friends and an individual with the username “K t” re-
sponded. MV told “K t” that she was fifteen and “K t” told her that
he was twenty-five to twenty-nine years old. The conversation be-
came sexual when they began messaging on Snapchat. During
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22-13884 Opinion of the Court 3
their interactions, “K t” persuaded MV to send over fifty explicit
pictures and videos.
Federal law enforcement tracked the IP address connected
to the Snapchat account and found it was assigned to Sheldon’s ad-
dress in Interlachen, Florida. Law enforcement searched Sheldon’s
bedroom and found a thumb drive with multiple videos and images
of child pornography.
In an interview, Sheldon estimated that he asked at least ten
girls he knew to be underage to send him sexually explicit images,
including MV. Sheldon also admitted that he had been viewing
child pornography for several years, was sexually attracted to chil-
dren, and masturbated while viewing child pornography. At least
1,070 images and 210 videos of child pornography were discovered
on Sheldon’s electronic devices.
In 2022, Sheldon pleaded guilty to one count of producing
child pornography and two counts of distribution. At sentencing,
neither party objected to the presentence investigation report,
which gave Sheldon a total offense level of forty-three and a crimi-
nal history category I. The guidelines were capped at the statutory
maximum of 840 months’ imprisonment.
The Government recommended a sentencing range of 292
to 365 months, underscoring Sheldon’s progression from viewing
to producing child pornography and using social media to groom
minors. Sheldon sought a downward variance to the fifteen-year
mandatory minimum. He argued that this was his first criminal
offense, that the sentencing guidelines should carry minimal
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4 Opinion of the Court 22-13884
weight because they were “skewed,” that the Government’s recom-
mendation amounted to a life sentence, and emphasized his ac-
ceptance of the nature and circumstances of the offense.
The District Court acknowledged the gravity of the case, de-
scribing it as “child pornography of the worst order.” While rec-
ognizing that mere gratification from viewing such material is con-
cerning, the District Court emphasized that Sheldon took it further
by grooming MV, escalating from innocent conversations to ex-
plicit sexual acts. The District Court found that Sheldon’s history
and characteristics, including his major depressive disorder, were
not “completely remarkable” and that many with such a disorder
don’t engage in child pornography. The District Court acknowl-
edged Sheldon’s forthrightness with law enforcement and genuine
remorse. Still, it stressed the need for a sentence that reflected the
seriousness of the offense and provided accountability. The Dis-
trict Court expressed uncertainty about Sheldon’s low risk of recid-
ivism and underscored the importance of public protection in de-
termining the sentence. The District Court agreed that the sen-
tencing guidelines were “not very helpful” here. However, it disa-
greed that the Government’s recommended sentence was “a life
sentence.”
Ultimately, the District Court sentenced Sheldon to 262
months’ imprisonment followed by a life term of supervised re-
lease. Sheldon objected to the reasonableness of his sentence and
now appeals.
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22-13884 Opinion of the Court 5
II. Discussion
A. Reasonableness
Sheldon argues that his sentence is procedurally unreasona-
ble. He says U.S. Sent’g Guidelines Manual (U.S.S.G.) § 2G2.2 (U.S.
Sent’g Comm’n 2021)—used to calculate his offense level—concen-
trates all offenders at or near the statutory maximum, which con-
travenes § 3553’s requirements. He argues we should invalidate
U.S.S.G. § 2G2.2, citing a 2012 Sentencing Commission report re-
garding the sentencing disparities among nonproduction child por-
nography defendants. He concedes we rejected this argument in
United States v. Cubero,
754 F.3d 888 (11th Cir. 2014), but asks us to
reexamine it.
We review the reasonableness of a sentence for an abuse of
discretion. United States v. Tome,
611 F.3d 1371, 1378 (11th Cir.
2010). Reviewing reasonableness is a two-part process that requires
us to ensure that the District Court did not commit a significant
procedural error and that the sentence is substantively reasonable
under the totality of the circumstances.
Id. The party challenging
the sentence bears the burden of showing unreasonableness.
Id.
We will hold that a significant procedural error has been
made if a district court calculates the guidelines incorrectly, disre-
gards the § 3553(a) factors, bases the sentence on clearly erroneous
facts, neglects to explain the sentence, or treats the guidelines as
mandatory rather than advisory. Gall v. United States,
552 U.S. 38,
51 (2007). Or if it treats the guidelines as presumptively reasonable.
United States v. Hill,
643 F.3d 807, 880 (11th Cir. 2011).
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6 Opinion of the Court 22-13884
In Cubero, this Court addressed child pornography cases spe-
cifically when it discussed a Sentencing Commission report on the
deficiencies of the child pornography guideline provisions.
754
F.3d at 900. We held that the report did not affect the validity of
§ 2G2.2 in nonproduction child pornography cases. Id. As Sheldon
recognizes, this forecloses his § 2G2.2 argument. We are bound by
the prior panel precedent rule because Cubero has not been over-
ruled by the Supreme Court or this Court sitting en banc. See
United States v. White,
837 F.3d 1225, 1228 (11th Cir. 2016) (per cu-
riam). The District Court didn’t treat the guidelines as mandatory
or presumptively reasonable. It explicitly acknowledged that the
guidelines were “not very helpful,” which explains its substantial
downward variance.
Nor has Sheldon shown his 262-month sentence is substan-
tively unreasonable. Sheldon argues that the District Court gave
undue weight to his offense conduct—particularly his admission
that he had been engaging in the conduct several years before his
arrest—and not enough weight to his personal history and charac-
teristics. He asserts that the District Court was too concerned with
punishing him for his three-year involvement in child pornography.
He also argues that the District Court failed to give sufficient
weight to his individual history and the nature of the charges
against him and that the recidivist offender guidelines overrepre-
sent his criminal history.
We will not substitute our judgment for that of the sentenc-
ing court. See United States v. Rosales-Bruno,
789 F.3d 1249, 1257
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22-13884 Opinion of the Court 7
(11th Cir. 2015). The question is whether the District Court’s deci-
sion was “in the ballpark of permissible outcomes.”
Id. (quoting
United States v. Irey,
612 F.3d 1160, 1189 (11th Cir. 2010)). Likewise,
a district court’s imposition of a sentence well below the statutory
maximum penalty indicates reasonableness. United States v. Cro-
teau,
819 F.3d 1293, 1310 (11th Cir. 2016).
The District Court did not exclusively rely on Sheldon’s
three-year involvement with child pornography to the exclusion of
mitigating factors. Instead, it grappled with the gratification that
Sheldon received from viewing child pornography and the escala-
tion from viewing child pornography to grooming MV to perform
sexual acts, which the District Court saw as “child pornography of
the worst order.” It considered the overarching goals of sentenc-
ing, focusing on the need to provide “accountability” and a public
protection component—as the court was unconvinced of Shel-
don’s low risk for recidivism. It balanced these circumstances and
goals against mitigating factors such as Sheldon’s personal history
and characteristics, willingness to be forthright, and genuine re-
morse.
Although Sheldon had no criminal history, which would oth-
erwise be a mitigating factor, the District Court found this factor
was undermined by the facts of his case. The District Court noted
the aggravating circumstance of grooming a minor, which it
deemed an “escalation.” The weight given to each factor is left to
the District Court’s discretion and it did not abuse that discretion
in deciding that the factors weighed in favor of a variance below
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8 Opinion of the Court 22-13884
the guidelines, but less than the one Sheldon requested. Further,
Sheldon’s 262-month sentence was a substantial downward vari-
ance from the 840-month guidelines calculation—another indica-
tion of reasonableness.
C. Eighth Amendment
Sheldon argues that his sentence violates the Eighth Amend-
ment. He says that his 262-month sentence is excessive and grossly
disproportional because he was a first-time offender with nonvio-
lent offenses. An Eighth Amendment challenge raised for the first
time on appeal is reviewed for plain error. United States v. Suarez,
893 F.3d 1330, 1335 (11th Cir. 2018). Sheldon did not make his con-
stitutional arguments to the District Court, so we review them for
plain error.
There can be no plain error when the issue is not directly
resolved by law from the Supreme Court or this Court. United
States v. Johnson,
981 F.3d 1171, 1191 (11th Cir. 2020). Sheldon has
identified no binding precedent under which the Supreme Court or
this Court has found that a sentence below the guideline range and
well below the applicable statutory maximum violated the Eighth
Amendment. Therefore, he cannot show plain error. See Johnson,
981 F.3d at 1191. The District Court’s judgment is
AFFIRMED.
