United States v. Francisco Cubero

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 12-16337
D.C. Docket No. 1:12-cr-20071-PAS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO CUBERO,
Defendant-Appellant.
Appeal from the United States District Court for
the Southern District of Florida
(June 11, 2014)
Before HULL, COX and FARRIS,∗ Circuit Judges.
HULL, Circuit Judge:
∗
Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
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Defendant Francisco Cubero appeals his 151-month sentence and his life-
term of supervised release imposed after he pled guilty to one count of distribution
of child pornography, in violation of 18 U.S.C. § 2252(a)(2) and (b)(1), and two
counts of possession of child pornography, in violation of § 2252(a)(4)(B) and
(b)(2). On appeal, Cubero argues that his sentence and supervised release term are
procedurally and substantively unreasonable.
After review of the record and the briefs of the parties, and having the
benefit of oral argument, we affirm.
I. BACKGROUND
A. Cubero’s Guilty Plea
On June 1, 2012, Cubero pleaded guilty to one count of distributing and two
counts of possessing child pornography. In his factual proffer, Cubero admitted
(1) he used a peer-to-peer file-sharing network on his home computer to download
and view child pornography; (2) he used the search term “PTHC” 1 to search for
files on the peer-to-peer network, knowing that the term was associated with child
pornography; (3) he had a CD-Rom disc containing child pornography files; (4) he
placed some of his child pornography files in a “shared” folder on his computer
that enabled other people to access the files; (5) law enforcement personnel
1
PTHC is an acronym for “pre-teen hard core” pornography.
2
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downloaded seventeen child pornography files from his computer because he
shared the files through the peer-to-peer software; and (6) an examination of his
computer revealed images depicting, inter alia, infant, pre-pubescent minor
children, and pre-teens being orally, anally, and/or vaginally penetrated or
otherwise sexually molested by adults.
For the distribution count, the statutory minimum and maximum terms of
imprisonment were 60 months and 240 months, respectively. See 18 U.S.C.
§ 2252(b)(1). For the possession counts, there was no statutory minimum penalty,
and the statutory maximum term of imprisonment was 120 months. See id.B. District Court’s Guidelines Calculations
At sentencing on November 21, 2012, the district court calculated a base
offense level of 22 for “trafficking in material involving the sexual exploitation of
a minor.” U.S.S.G. § 2G2.2(a)(2).
The district court increased Cubero’s offense level by
(1) two levels for trafficking in materials involving minors under twelve
years of age, id. § 2G2.2(b)(2);
(2) two levels for distributing child pornography, id. § 2G2.2(b)(3)(F);
(3) four levels because the images portrayed sadistic, masochistic, or other
violent conduct, id. § 2G2.2(b)(4);
(4) two levels because Cubero used a computer in committing his crimes,
id. § 2G2.2(b)(6);
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(5) five levels because the offense involved at least 600 images of child
pornography, id. § 2G2.2(b)(7)(D).
The district court then reduced Cubero’s offense level by three levels for
acceptance of responsibility. Id. § 3E1.1(a), (b).
When totaled, Cubero had an offense level of 34 and a criminal history
category of I. This yielded a guidelines range of 151 months to 188 months of
imprisonment.
C. Cubero’s Objections
Cubero filed written objections, and made oral objections at his sentencing
hearing, related to the application of the two-level “distribution” increase under
U.S.S.G. § 2G2.2(b)(3)(F) and the failure to apply a two-level decrease pursuant to
U.S.S.G. § 2G2.2(b)(1). Cubero also argued for a downward variance to the
statutory mandatory minimum sentence of 60 months in prison.
In addition to his objections and request for a variance, Cubero filed a
written statement in which he accepted responsibility and nearly two dozen
character letters written by family members and friends. Cubero also filed reports
from two mental health professionals related to his mental health and likelihood of
recidivism.
4
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D. Cubero’s Sentence
The district court considered Cubero’s filings and arguments but, ultimately,
overruled Cubero’s objections and declined to vary below the low end of the
advisory guidelines range.
The district court then sentenced Cubero to 151 months in prison—the
bottom of the guidelines range—to be followed by a life term of supervised
release. To be more precise, the district court sentenced Cubero to 151 months in
prison on the child pornography distribution count and 120 months in prison (the
statutory maximum) on each of the two child pornography possession counts. The
district court ordered that these three sentences run concurrently.
II. LEGAL PRINCIPLES
A. Sentencing Guidelines Determinations
We review for clear error the district court’s factual findings. United States
v. Zaldivar, 615 F.3d 1346, 1350 (11th Cir. 2010). We review de novo the district
court’s legal interpretation of the sentencing guidelines, including rejection of
double counting challenges. Id.; United States v. Dudley, 463 F.3d 1221, 1225–26
(11th Cir. 2006) (double counting). We review de novo the district court’s
application of the sentencing guidelines to the facts. Zaldivar, 615 F.3d at 1350.
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The government bears the burden of proving the applicability of a
sentencing guidelines increase, while the defendant bears the burden of proving the
applicability of a sentencing guidelines reduction. United States v. Belfast, 611
F.3d 783, 823 (11th Cir. 2010); Zaldivar, 615 F.3d at 1352.
B. Reasonableness of the Sentence
“We review the reasonableness of a sentence for abuse of discretion using a
two-step process.” United States v. Tuner, 626 F.3d 566, 573 (11th Cir. 2010).
First, we look at whether the district court committed any significant procedural
error, such as miscalculating the advisory guidelines range, treating the guidelines
as mandatory, failing to consider the 18 U.S.C. § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately explain the
chosen sentence. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008).
Then, we examine whether the sentence is substantively unreasonable under the
totality of the circumstances and in light of the § 3553(a) factors. Id.
When deciding upon a sentence, the district court must evaluate all of the
§ 3553(a) factors but can attach “great weight” to one factor over others. 2 United
2
The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense,
to promote respect for the law, and to provide just punishment for the offense; (3) the need for
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of sentences available; (7) the
6
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States v. Shaw, 560 F.3d 1230, 1237 (11th Cir. 2009) (quotation marks omitted).
“[A] district court has ‘considerable discretion’ in deciding whether the § 3553(a)
factors justify a variance and the extent of one that is appropriate.” Id. at 1238
(quoting United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008)). We give
that decision “due deference” because the district court has an “institutional
advantage” in making sentencing determinations. Id. (quotation marks omitted);
see also United States v. Alfaro-Moncada, 607 F.3d 720, 735 (11th Cir. 2010).
“We may vacate a sentence 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.” Id. (quoting Shaw, 560
F.3d at 1238) (additional quotation marks omitted).
On appeal, the party challenging the sentence bears the burden to show that
it is unreasonable. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission;
(9) the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution
to victims. 18 U.S.C. § 3553(a).
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III. PROCEDURAL REASONABLENESS
A. Relevant Statutory and Guidelines Provisions
Pursuant to 18 U.S.C. § 2252(a)(2), it is unlawful to “knowingly receive[],
or distribute[], any visual depiction [of child pornography] . . . by any means
including by computer,” or to “knowingly reproduce[] any [such] visual depiction
for distribution.” 18 U.S.C. § 2252(a)(2) (emphasis added).
Relevant here, the sentencing guidelines for a violation of § 2252(a)(2) call
for a base offense level of 22. U.S.S.G. § 2G2.2(a)(2).3 And, the guidelines call
for a two-level increase if the defendant distributed child pornography. 4 Id.
§ 2G2.2(b)(3)(F).
3
Guideline § 2G2.2 applies to defendants convicted of the myriad offenses proscribed by
18 U.S.C. §§ 1466A, 2251(d)(1)(A), 2252, 2252A(a) and (b), and 2260(b). See United States
Sentencing Commission, Guidelines Manual, Appendix A.
4
The sentencing guidelines application notes define “distribution” as:
[A]ny act, including possession with intent to distribute,
production, transmission, advertisement, and transportation, related
to the transfer of material involving the sexual exploitation of a
minor. Accordingly, distribution includes posting material
involving the sexual exploitation of a minor on a website for public
viewing but does not include the mere solicitation of such material
by a defendant.
U.S.S.G. § 2G2.2, cmt. n.1.
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B. Cubero’s Double Counting Argument
Cubero asserts that “ ‘distribution’ is an essential element of [Cubero’s]
§ 2252(a)(2) offense” and, thus, was “taken into account in calculating Cubero’s
base offense [level] under [U.S.S.G.] § 2G2.2.” Cubero also asserts that the two-
level sentencing increase contemplated by U.S.S.G. § 2G2.2(b)(3)(F) does “not
concern a conceptually separate notion related to sentencing” (emphasis and
quotation marks omitted). Putting these arguments together, Cubero asserts that—
because both the base offense level in § 2G2.2(a)(2) and the two-level increase in
§ 2G2.2(b)(3)(F) cover the act of “distribution”—the two-level increase in
§ 2G2.2(b)(3)(F) constitutes impermissible double counting.
Cubero’s logic is flawed. Although Cubero correctly notes that he was
adjudicated guilty for knowingly distributing child pornography in violation of 18
U.S.C. § 2252(a)(2), he incorrectly asserts that the only way to violate § 2252(a)(2)
is to knowingly distribute child pornography. One can also violate that provision
by knowingly receiving or reproducing child pornography. See 18 U.S.C.
§ 2252(a)(2); see also United States v. Reingold, 731 F.3d 204, 227 (2d Cir. 2013)
(noting that “distribution need not be present in every conviction under
[§ 2252(a)(2)]” because § 2252(a)(2) “proscribes the knowing receipt or
distribution of child pornography”).
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Therefore, Cubero is incorrect in stating that “ ‘distribution’ is an essential
element of [Cubero’s] § 2252(a)(2) offense” (emphasis added). To the contrary,
distribution is not required to violate § 2252(a)(2).
With that in mind, it is readily apparent that the base offense level in
U.S.S.G. § 2G2.2(a)(2) covers multiple possible violations of 18 U.S.C.
§ 2252(a)(2): knowing distribution, knowing receipt, and/or knowing reproduction
of child pornography. And, when a defendant performs the first type of unlawful
§ 2252(a)(2) conduct (i.e., knowingly distributing child pornography), the
Sentencing Commission found it appropriate to add two offense levels to the base
offense level. See U.S.S.G. § 2G2.2(b)(3)(F). 5
The Sentencing Commission acted within its authority when it concluded
that the sentencing guidelines should differentiate between the potential harm
caused by receipt and distribution—two very different types of conduct—by
providing a two-level increase when a defendant distributes, rather than simply
receives, child pornography.
5
The Sentencing Commission increased the offense levels even more for more heinous
variations of distribution. See, e.g., U.S.S.G. § 2G2.2(b)(3)(C) (adding five levels for
distributing child pornography to a minor); id. § 2G2.2(b)(3)(E) (adding seven levels for
distributing child pornography to a minor in an attempt to persuade that minor to engage in
unlawful sexual conduct).
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In so doing, the Sentencing Commission did not create guidelines with
impermissible double counting. Instead, the Sentencing Commission did what it
was supposed to do: create categories of offense behavior and offender
characteristics to reduce disparity in sentencing. Accord United States v. Irey, 612
F.3d 1160, 1181 (11th Cir. 2010) (en banc); United States Sentencing Commission,
Guidelines Manual, ch. 1, pt. A, at 1-2.
“Impermissible double counting occurs only when one part of the Guidelines
is applied to increase a defendant’s punishment on account of a kind of harm that
has already been fully accounted for by application of another part of the
Guidelines.” United States v. Dudley, 463 F.3d 1221, 1226–27 (11th Cir. 2006)
(quotation marks omitted). That did not occur here. To the contrary, Cubero’s act
of distribution was not “fully accounted for” by application of the base offense
level. For that reason, the Sentencing Commission found it appropriate to give a
two-level “distribution” increase to distinguish Cubero’s distribution conduct from
conduct that does not involve the distribution of child pornography. Id. at 1226–27
(“Double counting a factor during sentencing is permitted if the Sentencing
Commission intended that result and each guideline section in question concerns
conceptually separate notions relating to sentencing.” (quotation marks omitted)
(alterations adopted)).
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Moreover, “[w]e presume that the Sentencing Commission intended separate
guidelines sections to apply cumulatively, unless specifically directed otherwise.”
Id. at 1227 (quotation marks omitted). Here, there is every indication that the
Sentencing Commission intended each applicable provision of U.S.S.G. § 2G2.2 to
apply cumulatively.
As an initial matter, guideline § 2G2.2 sweeps broadly to address a wide
range of criminal conduct that occurs after child pornography has been produced.
As the guideline’s title indicates, it covers (1) trafficking; (2) receiving;
(3) transporting; (4) shipping; (5) soliciting; (6) advertising; and (7) possessing
child pornography, both with and without intent to distribute.
To help sentencing courts differentiate the harm caused by such crimes,
§ 2G2.2 draws many distinctions based on the defendant’s conduct. See United
States v. Reingold, 731 F.3d 204, 227 (2d Cir. 2013). First, the guidelines set a
lower base offense level for simple possession than it does for the other crimes
covered by the guideline. See U.S.S.G. § 2G2.2(a). Second, the guidelines
increase or decrease the offense level based on other relevant conduct. For
example, the guidelines modify the offense level when (1) the defendant’s conduct
was limited to receipt or solicitation; (2) the pornography involved a child younger
than 12 years old; (3) the act involved distribution; (4) the defendant possessed,
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solicited, or distributed many hundreds of images rather than a few images; (5) the
defendant’s conduct was part of a pattern; (6) the defendant used a computer to
commit his crime; and (7) the images portrayed sadistic, masochistic, or violent
conduct. See id. § 2G2.2(b).
Given the guidelines’ structure, it is implausible that the Sentencing
Commission intended the base offense level to completely capture all of the
possible harm associated with distributing child pornography. Rather, guideline
§ 2G2.2 is structured so that the range of harms associated with child pornography
distribution can be addressed through various offense level increases and
decreases. See Reingold, 731 F.3d at 228; United States v. Chiaradio, 684 F.3d
265, 283 (1st Cir.) cert. denied, 133 S. Ct. 589 (U.S. 2012) (“Viewed against this
chiaroscuro backdrop, it is apparent that the sentencing guidelines broadly cover
all child pornography offenses and use the offense level spread and subsequent
adjustments to reach appropriate benchmarks for different permutations of
possession, solicitation, and distribution.”). Thus, the offense level increase found
in U.S.S.G. § 2G2.2(b)(3)(F) applies cumulatively, and the district court did not
abuse its discretion in applying it here.
For all these reasons, the district court did not err in increasing Cubero’s
guidelines range two levels pursuant to U.S.S.G. § 2G2.2(b)(3)(F).
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C. Cubero’s Guidelines Reduction Argument
The sentencing guidelines for child pornography provide for a two-level
decrease if (1) “the defendant’s conduct was limited to the receipt or solicitation of
[child pornography]” and (2) “the defendant did not intend to traffic in, or
distribute, such material.” U.S.S.G. § 2G2.2(b)(1). Cubero argues that he was
entitled to the benefit of this provision. He was not.
Cubero pled guilty to knowingly distributing child pornography. He
admitted that he used a peer-to-peer file-sharing network to obtain hundreds of
images, some of which he elected to make available to other users. These facts
preclude Cubero’s argument that he meets either relevant element of U.S.S.G.
§ 2G2.2(b)(1). See id. § 2G2.2 cmt. n.1 (“[D]istribution includes posting material
involving the sexual exploitation of a minor on a website for public viewing . . .
.”); United States v. Spriggs, 666 F.3d 1284, 1287 (11th Cir. 2012) (holding that
the distribution element of U.S.S.G. § 2G2.2(b) is satisfied where a user “allow[s]
[child pornography] files to be accessed on the Internet by placing them in a file
sharing folder . . . [and] knowingly makes the files accessible to others.”); see also
United States v. Grzybowicz, No. 12-13749, --- F.3d ----, 2014 WL 1328250, at *9
(11th Cir. Apr. 4, 2014) (summarizing Spriggs’s holding with respect to the
“distribution” element of U.S.S.G. § 2G2.2(b)).
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The district court did not err in failing to give Cubero the two-level decrease
described in U.S.S.G. § 2G2.2(b)(1).
D. Cubero’s Other Procedural Reasonableness Arguments
Cubero also argues that the district court procedurally erred because it
(1) treated the advisory guidelines range as presumptively reasonable, (2) failed to
properly consider the non-guideline § 3553(a) factors and Cubero’s arguments
regarding those factors, (3) failed to adequately and properly consider Cubero’s
argument for a downward variance, and (4) failed to adequately explain its
sentence.
Cubero’s assertions are contradicted by the record.
The record makes clear that the district court read and considered all of
Cubero’s documents and arguments related to his specific characteristics and the
circumstances of his offense conduct, including (1) Cubero’s objections to the PSI
and his sentencing memoranda; (2) the many letters from Cubero and his friends
and family; (3) the reports from Cubero’s mental health professionals; (4) Cubero’s
personal history and characteristics, including his absent father, his parents’
divorce, and his grandmother’s suicide; (5) the so-called “similarly situated”
defendants brought to the court’s attention by Cubero; and (6) Cubero’s request for
a downward variance and the memoranda supporting that request.
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And, before pronouncing Cubero’s sentence, the district court heard and
considered Cubero’s arguments that (1) district courts “routinely” grant downward
variances in cases involving the possession and distribution of child pornography
via peer-to-peer software; (2) sentencing guideline “2G2.2 does not reflect
reasoned and sound judgment, and should not be considered a reasonable and
appropriate sentencing option in this case”; (3) to avoid unwarranted sentencing
disparity, a “lenient sentence” was reasonable in this case; (4) the 2010 letter to the
U.S. Sentencing Commission from Jonathan Wroblewski, the Director of the
Department of Justice’s Office of Policy and Legislation, recommended that the
Commission consider reforming the child pornography guidelines and, thus,
supported Cubero’s request for a downward variance.6
According to Cubero’s third supplement to his sentencing memorandum,
Wroblewski’s letter stated that “the child pornography guideline has been driven
up by congressional directives . . . that were not based on empirical evidence
regarding the manner in which these offenses are regularly carried out,
technological realities, or the history and characteristics of these offenders.”
6
The Commission is an agency within the judicial branch. Wroblewski’s letter is written
as an employee of the Department of Justice, an executive branch agency. Thus, we note that
Wroblewski’s letter was written to—and not by—the Commission, and the letter was not
adopted by the government in this case.
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Cubero said that Wroblewski’s letter “urged the Commission to recommend to
Congress legislation that would permit revision of the guideline to better account
for offense severity and culpability.” 7 Relying on Wroblewski’s letter, Cubero
argued that “[t]he high rate of below-range sentences in child pornography cases”
reflects the fact that “[m]any judges and prosecutors find that the guidelines for
typical child pornography cases are too high and that they fail to differentiate
between more and less serious offenses and offenders.”
At the sentencing hearing, the district court noted that its “first obligation”
was to “properly calculate the guidelines” and its “next obligation” was to sentence
Cubero using the factors set forth in 18 U.S.C. § 3553(a).
After calculating the advisory guidelines range, the district court considered
Cubero’s request for a downward variance. After hearing Cubero’s factual and
legal arguments in favor of a downward variance, the district court was “not
convinced that based upon the images, [it] should go below the guidelines.” The
7
In his June 2010 letter to the Commission, Wroblewski also wrote that, in several pieces
of legislation, “Congress directed the Sentencing Commission to increase the base offense level
and to add certain enhancements, including enhancements for the use of a computer in the
commission of the crime and for the number of images involved in the crime.” Wroblewski
recommended that the Commission consider “updating many aspects of the child pornography
sentencing guidelines to better calibrate the severity and culpability of defendants’ criminal
conduct with the applicable guideline sentencing ranges.” But, he noted that the Commission’s
ability to implement any changes to the guidelines would be limited “[b]ecause the current
guidelines are largely mandated by statute,” and, thus, “legislation will be required to modify
them.”
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district court rejected Cubero’s request for a downward variance, stating that it
would not “sentence below the guidelines in the exercise of [its] discretion.”
Although not required to provide the minute details of its decision to deny
Cubero’s request for a downward variance, see Rita v. United States, 551 U.S. 338,
356, 127 S. Ct. 2456, 2468 (2007), the district court here gave a considerably
detailed explanation to support its sentencing decision: (1) Cubero possessed a
high volume of child pornography images and videos; (2) the type and content of
images in Cubero’s possession were “egregious,” “pretty tough,” and almost “too
embarrass[ing] to mention”; (3) the titles of the child pornography files were
horrific and “others [would] be offended if they just even heard the titles”; (4) the
images involved toddlers being raped; (5) the fact that Cubero saved more than 200
images and 17 videos onto CDs arguably supported a sentence at the high end of
the guidelines range; (6) Cubero’s conduct lasted at least six months; (7) victims of
child pornography are victimized by the peer-to-peer market of child pornography;
(8) relevant differences existed between Cubero’s case and the cases cited by
Cubero as comparable “downward variance” cases; (9) other sentences from other
courts may have been too lenient; (10) sentencing in child pornography cases is
difficult because “everybody is different and every crime is different”; (11) the
district court needed to consider the “particular characteristics of the defendant”
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and could not vary simply because of statistical models of what other courts had
done in other child pornography cases; (12) the district court had discretion to vary
and had varied in other cases; (13) “a reasonable sentence would be at the top of
the guidelines” range; (14) despite Cubero’s arguments, it was “not convinced”—
based upon the images, memoranda, and doctors’ reports—that it should sentence
below the guidelines range; (15) it would not “sentence below the guidelines in the
exercise of [its] discretion”; and (16) the sentence was “harsh” but was “within the
spirit of what Congress wants.”
The record leaves no doubt that the district court fully considered the
statutory sentencing factors, rejected Cubero’s arguments for a below-guidelines
sentence, and ruled that Cubero’s conduct warranted a sentence within the advisory
guidelines range. The district court was aware that it could vary downward and
impose a sentence below the guidelines range. 8 Yet, it declined to do so given the
facts of Cubero’s case. Cubero has not met his burden to show that his sentence is
procedurally unreasonable.
8
At oral argument, defendant Cubero conceded that the district court recognized that it
had discretion to vary downward from the guidelines range. Therefore, the issue on appeal is
whether the district court abused its discretion in denying Cubero’s request for a downward
variance.
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IV. SUBSTANTIVE REASONABLENESS
Cubero also has not shown that his sentence and supervised release term are
substantively unreasonable. Cubero’s 151-month sentence is at the bottom of the
advisory guidelines range of 151 to 188 months and well-below the statutory
maximum, two indications of reasonableness. See United States v. Gonzalez, 550
F.3d 1319, 1324 (11th Cir. 2008); United States v. Hunt, 526 F.3d 739, 746 (11th
Cir. 2008).
Further, the facts and the § 3553(a) factors support the district court’s
decision to impose a 151-month within-guidelines sentence and a life-term of
supervised release.
Cubero possessed hundreds of images and more than a dozen videos of child
pornography that depicted infants, toddlers, pre-pubescent, and pre-teen girls and
boys being molested, raped, and forced to participate in sadistic acts and bestiality.
The district court found that the types of images Cubero obtained were “egregious”
and reasonably determined that a 151-month sentence was necessary to comply
with the statutory sentencing factors. See 18 U.S.C. § 3553(a).
Cubero argues that the district court failed to account for his personal history
and characteristics; but, as noted above, the district court considered Cubero’s
personal history and characteristics and the mental health evaluations he submitted.
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Under the totality of the circumstances, we cannot say that the district court
abused its discretion and imposed a sentence or term of supervised release outside
the range of reasonable sentences.
V. SENTENCING COMMISSION’S REPORT
On February 27, 2013—after defendant Cubero’s sentencing in November
2012 and after Cubero filed his notice of appeal in December 2012—the U.S.
Sentencing Commission (“Commission”) released a report to Congress on the
child pornography sentencing guidelines (“2013 report”). See United States
Sentencing Comm’n, Special Report to Congress: Federal Child Pornography
Offenses (Dec. 2012). The 2013 report lists Jonathan Wroblewski, whose letter
Cubero submitted to the sentencing court, as a “Commissioner, Ex-officio.”
Because Cubero has made this report a focus of his appeal, we specifically
address the report.
A. Commission’s 2013 Report
The Commission’s 2013 report centers on U.S.S.G. § 2G2.2, the guidelines
for non-production child pornography offenses. The Commission prepared its
2013 report “to contribute to the ongoing assessment by Congress and the various
stakeholders in the federal criminal justice system regarding how federal child
pornography offenders are prosecuted, sentenced, incarcerated, and supervised.”
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In its 2013 report, the Commission concludes that “the current non-production
guideline warrants revision” because (1) the enhancements do not account for an
offender’s use of modern technology and are, thus, “outdated and
disproportionate”;9 (2) the guideline fails “to account fully for some offenders’
involvement in child pornography communities and sexually dangerous behavior”;
and (3) “[t]he current guideline produces overly severe sentencing ranges for some
offenders, unduly lenient ranges for other offenders, and widespread inconsistent
application.” The 2013 report questions the appropriateness of the current
guidelines scheme in § 2G2.2 for non-production cases where the offender used
peer-to-peer file sharing and the Internet to receive and distribute pornography.
9
A principal premise of criticisms of the current non-production child pornography
guidelines is that “dramatic technological changes related to computers and the Internet in the
past decade, such as the ascendance of [peer-to-peer] file-sharing programs, . . . have changed
the way that typical offenders today receive and distribute child pornography” and that the
guidelines have failed to adapt to these changes in technology. See 2013 report at viii. For
example, in this day and age, a majority of child pornography consumers use peer-to-peer
software on their computers to collect child pornography files, which allows even novice child
pornography consumers to quickly access and store a large volume of child pornography images
and videos in a short amount of time. See id. at 5-6. This software also allows for instantaneous
distribution through the file-sharing aspect of the peer-to-peer software. See id. Unlike pre-
computer-based child pornography consumption, which typically involved time-consuming and
costly film-based cameras and photocopiers and distribution in printed form through the postal
system, the current computer-based technologies have reduced the barriers to child pornography
consumption. See id. at 41–42. This technological-shift routinely exposes a large number of
child pornography defendants to several guidelines enhancements (e.g., use of a computer
(U.S.S.G. § 2G2.2(b)(6)); distribution of child pornography (U.S.S.G. § 2G2.2(b)(3)(F)); and
quantity-based enhancements (U.S.S.G. § 2G2.2(b)(7)(D)). The 2013 report suggests that, as a
result of technology changes, the § 2G2.2 guidelines treat a majority of offenders similarly
without accounting for the variations in the offenders’ dangerousness, contact with children, or
culpability. See id. at xi.
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The report states that some courts criticize the current child pornography
guidelines because they are influenced by congressional directives, “fail[] to reflect
the Commission’s traditional institutional expertise,” and are “not based on
empirical evidence.”
Although it recommends amending U.S.S.G. § 2G2.2, the Commission’s
report agrees with the Department of Justice that Congress should “enact
legislation providing the Commission with express authority to amend the current
guideline provisions.” The Commission recommends congressional action—rather
than the Commission’s own, independent action—because, unlike many
sentencing guidelines, the non-production child pornography guidelines “were
promulgated pursuant to specific congressional directives or legislation.”
(Emphasis added). 10
B. Cubero’s Arguments
In his appellate brief and at oral argument, Cubero argues that the
Commission’s 2013 report itself renders his 151-month sentence procedurally and
substantively unreasonable and requires at least a remand. In Cubero’s view, “the
Commission itself [in its 2013 report] specifically validated all of the arguments
10
The Commission also recommends that Congress amend the current federal statutory
scheme related to child pornography offenses in several respects.
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that [Cubero’s] defense counsel made to the district court in support of a sentence
below the Guideline range.”
Cubero argues that his request for a downward variance “deserved careful
‘consideration’ by the district court, and a valid, case specific explanation” as to
why it was denied. Cubero stresses that the 2013 report validates his argument at
sentencing that the § 2G2.2 guidelines are overly severe for his “mine-run, first-
offender, no-contact case.”
In response, the government asserts that the district court considered and
rejected many, if not all, of the arguments expressed in the Commission’s 2013
report. The government also argues that a report from the Commission cannot
override the district court’s sentencing experience and that the absence of empirical
evidence to support the child pornography guidelines enhancements does not
compel the invalidation of a sentencing guideline. The government contends that
Cubero’s argument, at root, is a challenge to the continuing legitimacy of § 2G2.2.
C. Discussion
We agree with the government that the Commission’s 2013 report does not
render the non-production child pornography guidelines in § 2G2.2 invalid or
illegitimate. Rather, the Commission recommends that Congress enact legislation
providing the Commission with express authority to amend [§ 2G2.2]” The
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publication of the 2013 report does not change the statutory sentencing scheme, the
applicable sentencing guidelines, or the binding precedent about § 2G2.2 in this
Circuit.
Before the 2013 report, this Court has previously rejected similar arguments
about the sentencing guidelines for child pornography offenses generally. See
United States v. Wayerski, 624 F.3d 1342, 1354–55 (11th Cir. 2010). We do so
here, specifically as to § 2G2.2. While a district court may certainly consider the
2013 report in choosing the ultimate sentence, the report does not invalidate
§ 2G2.2. And, the district court’s use of § 2G2.2 as an advisory guideline does not
render Cubero’s sentence procedurally or substantively unreasonable. Accord
United States v. Snipes, 611 F.3d 855, 870 (11th Cir. 2010) (“[T]he absence of
empirical evidence is not an independent ground that compels the invalidation of a
guideline.”).
Cubero also argues that—in light of the 2013 report’s serious criticism of
§ 2G2.2—this Court should, at a minimum, remand to the district court and require
the district court to give greater or more extensive reasons for rejecting his request
for a downward variance from the § 2G2.2-based guidelines range. We disagree.
Nothing in the Commission’s 2013 report altered our appellate duties in reviewing
a § 2G2.2-based sentence or the district court’s sentencing duties or discretion in
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any way. Accord United States v. Shaw, 560 F.3d 1230, 1239 (11th Cir. 2009)
(“We doubt that a single study, or even a number of them, should be allowed to
override a sentencing court's experience . . . .”); id. at 1238 (“There is no
requirement that sentencing judges confine their considerations to empirical studies
and ignore what they have learned from similar cases over the years. Indeed, one
of the reasons district courts are given such wide latitude in sentencing is their
experience in handling criminal cases.”).
Specifically, the 2013 report also (1) does not alter the district court’s duties
to calculate the advisory guidelines range and to impose a sentence after
considering the § 3553(a) factors, (2) does not limit the district court’s discretion to
determine what weight to give to each § 3553(a) factor, and (3) does not require
the district court to vary from the § 2G2.2-based guidelines range. See 18 U.S.C.
§ 3553(a)–(b). The district court was empowered with discretion to consider
Cubero’s downward-variance arguments, many of which are now captured by and
reflected in the 2013 report, but the court was not compelled to vary downward.
Accord Kimbrough v. United States, 552 U.S. 85, 109–10, 128 S. Ct. 558, 575
(2007) (holding that the lack of empirical evidence was one factor that a district
court could consider in exercising its post-Booker discretion to depart from the
guidelines); Dell v. United States, 710 F.3d 1267, 1279 (11th Cir. 2013) (noting
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that the Supreme Court’s opinion in Kimbrough “empowered” the district courts
with discretion to impose a variance based on a policy disagreement with the
sentencing guidelines’ crack/powder cocaine disparity but did not “command”
them to exercise that discretion), cert. denied, 134 S. Ct. 1508 (U.S. 2014).
Contrary to Cubero’s arguments, the 2013 report does not heighten the
district court’s statutory duty to state the reasons for imposing a particular
sentence. See 18 U.S.C. § 3553(c). And, the 2013 report does not alter the U.S.
Supreme Court’s or this Circuit’s precedent regarding the district court’s
obligations under 18 U.S.C. § 3553(c); namely, that a district court’s decision to
apply the guidelines to a particular case does “not necessarily require lengthy
explanation.” Rita v. United States, 551 U.S. 338, 356, 127 S. Ct. 2456, 2468
(2007); United States v. Ghertler, 605 F.3d 1256, 1262 (11th Cir. 2010) (“A
sentencing court is not required to incant the specific language used in the
guidelines or articulate its consideration of each individual § 3553(a) factor, so
long as the record reflects the court’s consideration of many of those factors.”
(quotation marks omitted)); United States v. Flores, 572 F.3d 1254, 1271 (11th Cir.
2009) (“The district court explicitly stated that it considered the § 3553(a) factors
and did not need to individually discuss each of these factors.”); United States v.
Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (“In consideration of the
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§ 3553(a) factors, the district court does not need to discuss or state each factor
explicitly. . . . An acknowledgment the district court has considered the
defendant’s arguments and the § 3553(a) factors will suffice.”).
Here, the district court properly calculated the § 2G2.2-based guidelines
range, treated the range as advisory, recognized that it had discretion to vary,
considered the statutory sentencing factors as applied to Cubero, imposed a
guidelines sentence supported by the § 3353(a) factors, and adequately explained
the sentence imposed. See Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586,
597 (2007). The district court’s approach was procedurally reasonable, and the
sentencing procedure produced a substantively reasonable sentence. Accord
United States v. Grigsby, No. 13-3146, --- F.3d ----, 2014 WL 1424547, at *3 (10th
Cir. Apr. 15, 2014) (noting that the Commission’s 2013 report does not “stand for
the proposition that any application of § 2G2.2 will yield an unreasonable
sentence”).
VI. CONCLUSION
For the forgoing reasons, Cubero’s sentences and term of supervised release
are affirmed.
AFFIRMED.
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