United States v. Ricardo Bennett, Sr. ( 2020 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-4456
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICARDO JEROME BENNETT, SR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Wilmington. James C. Dever III, District Judge. (7:18-cr-00088-D-1)
Submitted: October 20, 2020 Decided: October 23, 2020
Before GREGORY, Chief Judge, DIAZ, Circuit Judge, and SHEDD, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Mitchell G. Styers, BANZET, THOMPSON, STYERS & MAY, PLLC, Warrenton, North
Carolina, for Appellant. Brian A. Benczkowski, Assistant Attorney General, John P.
Cronan, Deputy Assistant Attorney General, Thomas E. Booth, Criminal Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Robert J. Higdon,
Jr., United States Attorney, Jennifer May-Parker, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina; for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Ricardo Bennett of two counts of receipt of child pornography,
and one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(2),
(a)(4)(B). The district court sentenced Bennett to 216 months’ imprisonment. On appeal,
Bennett challenges the sufficiency of the evidence to support his receipt of child
pornography convictions and argues that his sentence is substantively unreasonable.
Finding no error, we affirm.
Bennett first argues that the trial evidence was insufficient to establish that he
knowingly received child pornography. A defendant challenging the sufficiency of the
evidence faces a heavy burden. United States v. Wolf, 860 F.3d 175, 194 (4th Cir. 2017).
On appeal, a jury’s verdict must be upheld “if, viewing the evidence in the light most
favorable to the government, substantial evidence supports it.” Id. (internal quotation
marks omitted). “Substantial evidence is evidence that a reasonable finder of fact could
accept as adequate and sufficient to support a conclusion of a defendant's guilt beyond a
reasonable doubt.” Id. (internal quotation marks and brackets omitted). In undertaking our
review, we cannot “assess witness credibility, and we assume that the jury resolved any
conflicting evidence in the prosecution’s favor.” United States v. Savage, 885 F.3d 212,
219 (4th Cir. 2018) (internal quotation marks omitted). To reverse, “the prosecution’s
failure [must be] clear.” United States v. Palomino-Coronado, 805 F.3d 127, 130 (4th Cir.
2015) (internal quotation marks omitted).
In order to convict Bennett of receiving of child pornography, the Government was
required to prove that Bennett (1) knowingly, (2) received, distributed, or reproduced for
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distribution, (3) a visual depiction, (4) of a minor engaged in sexually explicit conduct, and
that (5) he knew both that it portrayed a person under the age of 18 and that the minor was
engaged in sexually explicit conduct. ∗ 18 U.S.C. § 2252(a)(2); see States v. Cedelle, 89
F.3d 181, 185 (4th Cir. 1996). To satisfy the knowing element, the Government must
adduce evidence “that the defendant had knowledge of the sexually explicit nature of the
materials as well as . . . the involvement of minors in the materials’ production.” United
States v. Miltier, 882 F.3d 81, 86 (4th Cir. 2018) (internal quotation marks omitted).
At trial, Bennett admitted to using Ares, a peer-to-peer file sharing program used to
download child pornography. The Government presented testimony about Bennett’s
pretrial admissions to law enforcement that (1) he used Ares to download child
pornography; (2) he maintained a “My Shared folder” on the desktop computer—the
default destination for all files downloaded from Ares; (3) he had about 25 child
pornography files in the shared folder on his desktop; (4) he used search terms indicative
of child pornography, and that (5) he understood child pornography to involve individuals
engaged in sexual activity with minors. Moreover, trial evidence showed that Bennett’s
user accounts on every computer were password-protected and revealed 1,200 child
pornography images on the computers seized at Bennett’s residence. Finally, there was
also evidence that, in 2004, a child pornography movie was downloaded to Bennett’s
shared folder minutes after a file related to Bennett’s job was created. Although Bennett
∗
The possession of child pornography offense under 18 U.S.C. § 2252(a)(4)(B) is
a lesser included offense of receipt of child pornography offense under 18 U.S.C.
§ 2252(a)(2). See United States v. Schnittker, 807 F.3d 77, 81 (4th Cir. 2015).
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presented testimony indicating that other people—his wife and children—had access to the
computers and knew his computer account passwords, his wife denied downloading any
child pornography files. It is the province of the jury to weigh credibility, not ours. See
Savage, 885 F.3d at 219. Accordingly, taking the evidence in the light most favorable to
the Government, the Government presented sufficient evidence to permit a jury to conclude
that Bennett knowingly received child pornography.
Next, Bennett argues that his sentence is substantively unreasonable. We review
criminal sentences for both procedural and substantive reasonableness “under a deferential
abuse-of-discretion standard.” United States v. Lynn, 912 F.3d 212, 216 (4th Cir.), cert.
denied, 140 S. Ct. 86 (2019) (internal quotation marks omitted). A court must impose a
sentence that is “sufficient, but not greater than necessary, to comply with” the basic
sentencing objectives set forth in 18 U.S.C. § 3553(a) by Congress. 18 U.S.C. § 3553; see
Rita v. United States, 551 U.S. 338, 347-48 (2007) (summarizing § 3553(a)(2)’s purposes
as just punishment, deterrence, incapacitation, and rehabilitation). In evaluating
substantive reasonableness, we look to “the totality of the circumstances to determine
whether the district court abused its discretion in applying the standards set out in
[§] 3553(a)(2).” United States v. Bollinger, 798 F.3d 201, 221 (4th Cir. 2015). “Any
sentence that is within or below a properly calculated Guidelines range is presumptively
reasonable.” United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014).
The records shows that the court properly calculated the applicable Sentencing
Guidelines range and weighed the § 3553 factors, especially noting the seriousness of the
offense. The court considered Bennett’s military service, his work and family history, and
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his good pretrial release conduct. The court also considered the victims’ impact statements,
but in light of its personalized assessment of Bennett’s circumstances, the court granted
Bennett’s motion for a downward variance, ultimately imposing a sentence 46 months
below the Guidelines range. Nothing in the record rebuts the presumption afforded to
Bennett’s below-Guidelines sentence. We conclude that Bennett’s sentence is
substantively reasonable.
We therefore affirm the judgment. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
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