United States v. Aquiles Alexander Delaosa

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[DO NOT PUBLISH]
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13795
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AQUILES ALEXANDER DELAOSA,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 4:21-cr-00014-AW-MAF-1
____________________
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2 Opinion of the Court 21-13795
Before LUCK, LAGOA, and TJOFLAT, Circuit Judges
PER CURIAM:
Pursuant to a plea agreement, Aquiles Alexander Delaosa
pled guilty to four counts of a five-count indictment: Count One,
enticing a minor to engage in sexually explicit conduct; 1 Counts
Two and Three, receiving material containing child pornography
and distribution of material containing child pornography;2 and
Count Five, transfer of obscene matter to an individual below 16
years of age. 3 The District Court sentenced Delaosa to prison
terms totaling 288 months to be followed by a life term of super-
vised release, a fine of $100,000, and $18,000 in restitution to six
victims. Delaosa appeals his sentence on three grounds: (1) his life
term of supervised release is procedurally and substantively unrea-
sonable; (2) Packingham v. North Carolina, 137 S. Ct. 1730 (2017),
renders the conditions of his supervised release restricting com-
puter and internet access unconstitutional; and (3) his $100,000 fine
is an excessive fine in violation of the Eighth Amendment.
We find no merit in any of these grounds and accordingly
affirm.
1 18 U.S.C. §§ 2251(a) and (e).
2 18 U.S.C. §§ 2252A(a)(2) and (b)(1).
3 18 U.S.C. § 1470.
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21-13795 Opinion of the Court 3
I.
We begin our discussion with the presentence investigation
report (“PSR”) prepared by one of the District Court’s probation
officers prior to sentencing. The officer prepared four reports—an
initial report and three revisions. He submitted each to the parties
and the third revision to the District Court. The officer elicited the
parties’ objections. Delaosa had none.
Based on a total offense level of 43 and a criminal history
category of I, the guidelines sentence range for the offenses of con-
viction was life imprisonment. The maximum penalties prescribed
for the offenses of conviction totaled 960 months of imprisonment,
so 960 months became the sentence range. The guidelines range
for supervised release on Counts One through Three was five years
to life. Because sex offenses were involved, the recommended
range for supervised release was life. 4 The PSR specified the fol-
lowing special conditions of supervised release:
96. The defendant shall not possess or use a
computer without the prior approval of the proba-
tion officer. “Computer” includes any electronic de-
vice capable of processing or storing data as de-
scribed at 18 U.S.C. § 1030, and all peripheral devices.
97. As directed by the probation officer, the de-
fendant shall enroll in the probation office’s
4 See U.S.S.G. § 5D1.2(b)(2).
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4 Opinion of the Court 21-13795
Computer and Internet Monitoring Program (CIMP),
and shall abide by the requirements of the CIMP pro-
gram and the Acceptable Use Contract.
98. The defendant shall not access the Internet
or any “on-line computer service” at any location
(including employment) without the prior approval
of the probation officer. “On-line services” include
any Internet service provider, or any other public or
private computer network. As directed by the pro-
bation officer, the defendant shall warn his employer
of restrictions to his computer use.
99. The defendant shall consent to the probation
officer conducting periodic unannounced examina-
tions of his computer equipment, which may include
retrieval and copying of all data from his/her com-
puter(s) and any peripheral device to ensure compli-
ance with this condition, and/or removal of any
such equipment for the purpose of conducting a
more thorough inspection. The defendant shall also
consent to the installation of any hardware or soft-
ware as directed by the probation officer to monitor
the defendant’s Internet use.
100. The defendant shall not possess or use any data
encryption technique or program.
As for the fine, the guidelines prescribed a range of $50,000
to $250,000. At sentencing, the District Court imposed a total
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21-13795 Opinion of the Court 5
prison sentence of 288 months—substantially below the guidelines
range of 960 months—a supervised release term of life with the
special conditions listed above, and a fine of $100,000. At issue in
this appeal are the supervised release and the fine. We first con-
sider the supervised release issues.
II.
We review a sentence under the abuse of discretion stand-
ard. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007).
Because supervised release is part of a prison sentence, we review
the imposition of supervised release for abuse of discretion as well.
See United States v. Trailer, 827 F.3d 933, 935–36 (11th Cir. 2016)
(per curiam). A district court abuses its discretion and, in sentenc-
ing jargon, renders a sentence that is “procedurally unreasonable”
if the sentence it imposes rests on an error of law or findings of fact
that are clearly erroneous. See Klay v. United Healthgroup, Inc.,
376 F.3d 1092, 1096 (11th Cir. 2004). An error of law occurs if the
sentence results from a misapplication of the sentencing statutes—
here 18 U.S.C. § 3553(a)—or the Sentencing Commission’s guide-
lines or policy statements or if the court fails to adequately explain
(for appellate review purposes) the reasons for the sentence it im-
posed. Gall, 552 U.S. at 51, 127 S. Ct. 586, 597. Findings of fact are
clearly erroneous when they lack support in the evidence or we are
left with a “definite and firm conviction that a mistake has been
committed.” Knight v. Thompson, 797 F.3d 934, 942 (11th Cir.
2015) (internal quotation marks omitted) (quoting Lincoln v. Bd. of
Regents of Univ. Sys. of Ga., 697 F.2d 928, 939–40 (11th Cir. 1983)).
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6 Opinion of the Court 21-13795
If a sentence is procedurally unreasonable, we normally va-
cate the sentence and remand the case for further proceedings. If
it is not, we decide whether the sentence is “substantively unrea-
sonable,” the issue Delaosa raises. Gall, 552 U.S. at 51, 128 S. Ct.
586, 597. We decide that issue by considering the totality of the
circumstances the case presents and the purposes of a sentence as
expressed in the factors set out in 18 U.S.C. § 3553(a). Trailer, 827
F.3d at 936. We recognize that a sentence must be sufficient, but
not greater than necessary, to satisfy the factors listed in
§ 3553(a)(2): the need of the sentence to reflect the seriousness of
the offense and to provide punishment, general deterrence, and
specific deterrence, that is, protecting the public from the defend-
ant’s future conduct. See 18 U.S.C. § 3553(a)(2)(A)–(C). In arriving
at a sentence, the court need not discuss each of the § 3553(a) fac-
tors, but the record must reflect that it did consider them. United
States v. Ghertler, 605 F.3d 1256, 1262 (11th Cir. 2010). The weight
the court gives a § 3553(a) factor is a matter committed to its sound
discretion. United States v. Williams, 526 F.3d 1312, 1322 (11th Cir.
2008) (per curiam). A sentence is substantively unreasonable 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) fac-
tors. United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en
banc).
As noted surpra, Delaosa did not object to any of the facts
recited in the PSR or to the PSR’s application of the relevant law—
18 U.S.C. § 3553, the guidelines and accompanying policy
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21-13795 Opinion of the Court 7
statements—to the facts recited. Northern District of Florida Local
Rule 88.1(C) states: “A party must make objections or give notice
that it has no objections [to the PSR] as required by Fed. R. Crim.
P. 32(f).” 5 N.D. Fla. Loc. R. 88.1(C). The addendum the probation
officer appended to each version of the PSR states: “Counsel for the
defendant notified this officer via electronic communications that
he did not have any objections to the report.” 6 Moreover, at no
time during the sentencing hearing did Delaosa ask leave to
5 Rule 32(f) states:
(f) Objecting to the Report.
(1) Time to Object. Within 14 days after re-
ceiving the presentence report, the parties
must state in writing any objections, including
objections to material information, sentencing
guideline ranges, and policy statements con-
tained in or omitted from the report.
(2) Serving Objections. An objecting party
must provide a copy of its objections to the op-
posing party and to the probation officer.
(3) Action on Objections. After receiving ob-
jections, the probation officer may meet with
the parties to discuss the objections. The pro-
bation officer may then investigate further and
revise the presentence report as appropriate.
Fed. R. Crim. P. 32(f).
6 The Fourth PSR contains this statement. The same statement appears in the
addendum appended to the previous versions of the PSR.
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8 Opinion of the Court 21-13795
belatedly object to anything in the PSR. Therefore, with the excep-
tion of his argument that the $100,000 fine the Court imposed is
barred by the Eighth Amendment, he forfeited his remaining argu-
ments: that the life term of the supervised release and its condi-
tions, which restrict computer and internet access, are procedurally
and substantively unreasonable. We therefore examine those two
arguments for plain error.
Under plain error review, the defendant has the burden to
show that the district court erred, that the error is plain, and that it
affects his substantial rights. United States v. Monroe, 353 F.3d
1346, 1349 (11th Cir. 2003). If the defendant meets all three condi-
tions, we “may then exercise [our] discretion to notice a forfeited
error, but only if . . . the error seriously affect[s] the fairness, integ-
rity, or public reputation of judicial proceedings.” Id. (quotation
marks omitted, last alteration in original). Without explicit, on
point language in the relevant statute, “there can be no plain error
where there is no precedent from the Supreme Court or this Court
directly resolving” the issue. United States v. Kushmaul, 984 F.3d
1359, 1363 (11th Cir. 2021).
We turn now to the supervised release arguments, asking
whether the District Court committed plain error in imposing a life
term and the computer and internet access conditions.
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III.
A.
Delaosa’s opening brief says nothing in support of an argu-
ment that the life term of supervised release is challengeable as pro-
cedurally unreasonable, and we find nothing in the record that
would support one. We turn then to the substantively unreasona-
bleness argument. We consider whether the life term of super-
vised release is “substantively unreasonable under the totality of
the circumstances and in light of the 18 U.S.C. § 3553(a) factors.”
United States v. Johnson, 803 F.3d 610, 618 (11th Cir. 2015); accord
Trailer, 827 F.3d at 936. We conclude that it is not.
Delaosa faced a statutory term of five years to life of super-
vised release. 18 U.S.C. § 3583(k). The guidelines range was a term
of life. U.S.S.G. § 5D1.2(b) & (c). As we noted in United States v.
Pugh, the legislative history surrounding the enactment of
§ 3583(k) “reveals that Congress and the Sentencing Commission
intended to impose life terms of supervised release on sex offend-
ers. Congress explicitly recognized the high rate of recidivism in
convicted sex offenders.” 515 F.3d 1179, 1199 (11th Cir. 2008) (in-
ternal quotations omitted). Consistent with that intent, the Sen-
tencing Guidelines recommend that district courts impose a life
term of supervised release in cases like the present one. U.S.S.G.
§ 5D1.2(b) (Policy Statement); Pugh, 515 F.3d at 1199.
The facts before the District Court revealed that for more
than eight years prior to his arrest, Delaosa deceived minors into
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10 Opinion of the Court 21-13795
performing sexual acts that he video recorded, and he did so via
abhorrent practices. Delaosa also possessed and distributed a sig-
nificant amount of graphic child pornography. Relevantly to sub-
stantive reasonableness, the District Court forewent imposing a
prison sentence that would protect minors from Delaosa by inca-
pacitating him for life and instead sentenced him to a term of im-
prisonment that will likely result in him being released from prison
when he is in his late 50s or early 60s. Once released from prison,
Delaosa will be on supervised release for life, but he would be at
liberty to seek a modification of the term with the right of appellate
review if unsuccessful, thus placing his sentence far from what sub-
stantive reasonableness would allow. Trailer, 827 F.3d at 937–38.
In sum, the District Court did not err, much less plainly err,
in imposing a life term for Delaosa’s supervised release. We turn
now to Delaosa’s argument that Packingham barred the Court
from restricting his access to computers and the internet as it did.
B.
In Packingham, the Supreme Court held that registered sex
offenders who have finished serving their sentences may not be
barred from accessing the internet as a condition of their sex of-
fender registration. Packingham, 137 S. Ct. at 1737–38. In United
States v. Bobal, however, we held that a district court does not
plainly err when it sentences a defendant to a life term of super-
vised release with a special condition limiting internet access if the
defendant may access the internet with prior permission from the
district court. 981 F.3d 971, 977-78 (11th Cir. 2020) (noting that
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21-13795 Opinion of the Court 11
Packingham was distinguishable and did not address whether such
a condition violates the First Amendment).
That point aside, Delaosa’s Packingham-based argument
fails due to our prior panel precedent rule. We have upheld condi-
tions prohibiting defendants convicted of sex offenses from access-
ing a computer or the internet for the duration of their supervised
release. United States v. Carpenter, 803 F.3d 1224, 1239 (11th Cir.
2015). Although the Supreme Court has subsequently held that sex
offenders who have completed their sentences cannot be barred
from accessing the internet, we have since held that a district court
does not plainly err when it sentences a defendant to a life term of
supervised release with a special condition limiting internet access
if the defendant may access the internet with prior permission from
the district court. Bobal, 981 F.3d at 977–78. Therefore, as Bobal
has not been abrogated or overruled by this Court sitting en banc
or by the Supreme Court, we are bound to apply it. United States
v. Steele, 147 F.3d 1316, 1317–18 (11th Cir. 1998). Since the condi-
tions of Delaosa’s supervised release allow him to access the inter-
net with the District Court’s permission, we affirm the challenged
conditions of supervised release.
IV.
We review de novo whether a fine is excessive, in violation
of the Eighth Amendment’s Excessive Fines Clause. See United
States v. Seher, 562 F.3d 1344, 1370 (11th Cir. 2009) (reviewing
Eighth Amendment challenge to forfeiture order).
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12 Opinion of the Court 21-13795
The Eighth Amendment states that no excessive fines shall
be imposed. U.S. Const. amend. VIII. A fine is constitutionally
excessive fine “if it is grossly disproportional to the gravity of a de-
fendant’s offense.” See Seher, 562 F.3d at 1371 (quotation marks
omitted). To determine whether a fine is grossly disproportional
to the defendant’s offense, we consider: (1) whether the defendant
is in the class of persons at whom the criminal statute was primarily
directed; (2) what other penalties were authorized for the offense
by the legislature or the Sentencing Commission; and (3) the harm
caused by the defendant. United States v. Sperrazza, 804 F.3d 1113,
1127 (11th Cir. 2015) (reviewing forfeiture order). We strongly pre-
sume that a fine within the range of fines allowed by Congress for
the offense is constitutional. Seher, 562 F.3d at 1371.
Whether a fine is excessive is determined in relation to the
characteristics of the offense, not the characteristics of the offender.
United States v. Bajakajian, 524 U.S. 321, 334, 118 S. Ct. 2028, 2036
(1998) (reviewing forfeiture order). In determining whether a fine
is excessive by conducting the three-pronged proportionality anal-
ysis, we do not consider the impact the fine would have on an in-
dividual defendant. Seher, 562 F.3d at 1371.
We have remanded for resentencing a case where the dis-
trict court imposed a fine more than three times the maximum fine
in the guideline fine range and in opposition to the presentence in-
vestigation report’s recommendation that the defendant was una-
ble to pay a fine without providing any reasoned basis or explana-
tion of why the report’s conclusion was incorrect. United States v.
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21-13795 Opinion of the Court 13
Gonzalez, 541 F.3d 1250, 1256–57 (11th Cir. 2008) (vacating and re-
manding to the district court because the fine imposed was not sup-
ported by the record).
The maximum fine for offenses alleged in Counts One
through Three and Count Five was $250,000 each. 18 U.S.C.
§§ 1470, 2251, 2252A; see 18 U.S.C. § 3571(a). The District Court
did not err when it fined Delaosa $100,000 for two reasons. First,
his offense conduct spanned several years, from 2012 to 2021, and
involved multiple victims. Second, the $100,000 fine was within
the statutory range and is presumptively not excessive under the
Eighth Amendment. Seher, 562 F.3d at 1371.
For the foregoing reasons, the sentence imposed by the Dis-
trict Court is
AFFIRMED.