United States v. Mizrachy, 22-12050

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Writing for the Court: PER CURIAM
• Parties: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MICHAEL MIZRACHY, Defendant-Appellant.
• Docket Number: 22-12050
• Decision Date: 23 May 2023

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UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
MICHAEL MIZRACHY, Defendant-Appellant.

No. 22-12050

United States Court of Appeals, Eleventh Circuit

May 23, 2023

DO NOT PUBLISH

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 0:21-cr-60079-AMC-1

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Before NEWSOM, GRANT, and LAGOA, Circuit Judges.

PER CURIAM

Michael Mizrachy appeals from his 96-month sentence, amounting to a 25-month upward variance, for possession of child pornography, in violation of 18 U.S.C. §§ 2252(a)(4)(B) and 2252(b)(2). He argues that the district court abused its discretion in imposing a substantively unreasonable sentence. Mizrachy argues that the district court incorrectly viewed his career as a pediatrician as an aggravating factor, and that the district court placed too much emphasis on the severity of the offense which the Guidelines had already considered.

We review the reasonableness of a sentence under a deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). A defendant may preserve an objection to the substantive reasonableness of a sentence by advocating for a shorter sentence before the district court, thereby arguing that a shorter sentence would have been sufficient, and a longer sentence greater than necessary, to comply with statutory purposes of punishment. Holguin-Hernandez v. United States, 140 S.Ct. 762, 767 (2020). On substantive reasonableness review, we vacate the sentence only 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 to arrive at an unreasonable sentence based on the facts of the case. United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc). A sentence imposed well below the statutory

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maximum penalty is an indicator of a reasonable sentence. United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).

The 18 U.S.C. § 3553(a) factors that the court must weigh include, in relevant part, the nature and circumstances of the offense and the defendant's history and characteristics, the need for the sentence to adequately deter criminal conduct, and the need for the sentence to protect the public from further crimes of the defendant. 18 U.S.C. § 3553(a)(1), (2).

Although the district court must consider the § 3553(a) factors, it is not required to state on the record that it has explicitly considered each of the...