United States v. Brandon James Garcia

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 21, 2008
No. 07-11582 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00058-CR-FTM-99DNF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRANDON JAMES GARCIA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 21, 2008)
Before ANDERSON, HULL and WILSON, Circuit Judges.
PER CURIAM:
Brandon James Garcia appeals his sentence of 96 months of imprisonment,
followed by a lifetime of supervised release, after a jury convicted him for
possession and receipt of child pornography. He argues on appeal that his sentence
violates the Eighth Amendment because it is excessive and disproportionate to his
crime.
After Garcia dropped off his computer at an electronics store for repairs, a
store technician found numerous sexually explicit videos involving minors on the
computer and called the police. Garcia made some admissions but contended that
he was either a minor or that he was a little more than a half-year beyond attaining
adulthood when he committed the offenses. He further contends that the law
disproportionately punishes him because he is recently removed, in terms of age,
from the class of children that the statutory scheme is designed to protect.
Since Garcia did not raise this argument in the district court, we will review
it for plain error. See United States v. Raad, 406 F.3d 1322, 1323 (11th Cir. 2004)
(per curiam). Therefore, Garcia must prove that “(1) there is an error; (2) that it is
plain or obvious; (3) affecting [his] substantial rights in that it was prejudicial and
not harmless; and (4) that seriously affects the fairness, integrity or public
reputation of the judicial proceedings.” Id. (internal quotation marks omitted).
The Eighth Amendment prohibits cruel and unusual punishment. It
“contains a narrow proportionality principle that applies to non-capital sentences.”
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Ewing v. California, 538 U.S. 11, 20, 123 S. Ct. 1179, 1185, 155 L. Ed. 2d 108
(2003) (internal quotation marks omitted). When addressing an Eighth
Amendment challenge, “a court must make a threshold determination that the
sentence imposed is grossly disproportionate to the offense committed,” and the
defendant bears the burden of making this showing. United States v. Johnson, 451
F.3d 1239, 1243 (11th Cir.) (per curiam) (internal quotation marks omitted), cert.
denied, 127 S. Ct. 462 166 L. Ed. 2d 329 (2006). We have held that “[i]n general,
a sentence within the limits imposed by statute is neither excessive nor cruel and
unusual under the Eighth Amendment.” United States v. Moriarty, 429 F.3d 1012,
1024 (11th Cir. 2005) (per curiam) (internal quotation marks omitted).
A first-time offense for possession of child pornography carries a statutory
maximum of ten years of imprisonment. 18 U.S.C. §§ 2252(a)(4)(B), (b)(2). A
first-time offense for receipt of child pornography carries a statutory minimum of
five years imprisonment and a statutory maximum of twenty years imprisonment.
18 U.S.C. §§ 2252(a)(2), (b)(1). A life term of supervised release is authorized due
to the nature of the offense. 18 U.S.C. § 3583(k).
We find no plain error in Garcia’s concurrent 96-month sentences. His term
of imprisonment is below the 168-210 advisory guideline range, and less than the
statutory maximum. The life term of supervised release is authorized by statute.
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Garcia was 20 years of age by the time he was sentenced. Although Garcia was
close in age to the class sought to be protected, he was nonetheless an adult at the
time he committed the offenses, and not a minor. The district judge who sentenced
Garcia was not persuaded that Garcia was truthful when he testified that he only
downloaded child pornography from his computer when he was a minor and a few
months after reaching adulthood. Accordingly, we are unable to conclude that the
sentence Garcia received was so grossly disproportionate to the crime charged such
that it violated the Eighth Amendment.
AFFIRMED.
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