United States v. Cubero

• Decision Date: 11 June 2014
• Docket Number: No. 12–16337.,12–16337.
• Citation: 754 F.3d 888
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Francisco CUBERO, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

754 F.3d 888

UNITED STATES of America, Plaintiff–Appellee,

v.Francisco CUBERO, Defendant–Appellant.

No. 12–16337.

United States Court of Appeals,Eleventh Circuit.

June 11, 2014.

Harriett Galvin, Anne Ruth Schultz, Benjamin Widlanski, Timothy J. Abraham, Wifredo A. Ferrer, Vanessa S. Johannes, Kathleen Mary Salyer, U.S. Attorney's Office, Miami, FL, for Plaintiff–Appellee.

Brenda Greenberg Bryn, Federal Public Defender's Office, Fort Lauderdale, FL, Michael Caruso, Federal Public Defender, Federal Public Defender's Office, Miami, FL, for Defendant–Appellant.

Francisco Cubero, Coleman, FL. pro se.

Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 1:12–cr–20071–PAS–1.

Before HULL, COX and FARRIS,^* Circuit Judges.

HULL, Circuit Judge:

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 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. See18 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);

(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.

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.

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. Turner, 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.²United 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).

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.⁴Id. § 2G2.2(b)(3)(F).

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. See18 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”).

Therefore, Cubero is incorrect in...