UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4153
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JUSTIN NICHOLAS GUERRA,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, Chief District
Judge. (4:12-cr-00176-TLW-1)
Submitted: May 22, 2013 Decided: July 5, 2013
Before MOTZ, GREGORY, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William F. Nettles, IV, Assistant Federal Public Defender,
Kimberly H. Albro, Research and Writing Specialist, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for
Appellant. William N. Nettles, United States Attorney, Jimmie
Ewing, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a guilty plea, a federal district court
convicted Justin Nicholas Guerra of possession of child
pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). The
district court applied six sentence enhancements set forth in
the presentence investigation report (“PSR”), raising the
applicable Federal Sentencing Guidelines range to 188 to 235
months in prison. The district court recognized, however, that
the maximum term of imprisonment was limited by 18 U.S.C.
§ 2252(b)(2) to 120 months. After considering the arguments of
counsel, the district court sentenced Guerra to the statutory
maximum term.
Guerra challenges his sentence, arguing that the district
court abused its discretion by imposing a sentence that is both
procedurally and substantively unreasonable. We affirm.
I.
A.
In 2011, an undercover FBI agent signed on to a peer-to-
peer file sharing program and discovered approximately eighty-
five files of child pornography on the network of a user later
identified to be Guerra. The FBI obtained a warrant to search
Guerra’s home in Myrtle Beach, South Carolina, where they
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located and seized a computer with images matching those found
on the file sharing program.
Guerra’s computer contained 1,816 pornographic images
involving adult males with prepubescent boys, adult males with
infants, and prepubescent boys with other prepubescent boys.
Many of the photographs involved sadistic conduct, showing young
children in bondage. The file names were graphic, many
describing the sexual conduct and the age of the children
involved. After speaking with the FBI, Guerra admitted to
possessing child pornography, and to using the peer-to-peer
sharing network for the purpose of trading child pornography.
B.
In his plea agreement, Guerra agreed to six conditions
regarding the application of the Federal Sentencing Guidelines.
First, that § 2G2.2(a)(1) would apply with a base offense level
of 18. Second, that a two-level enhancement would be applied
pursuant to § 2G2.2(b)(2) because the material involved
prepubescent minors. Third, that a five-level enhancement would
be applied pursuant to § 2G2.2(b)(3)(B) for distribution of
pornography. Fourth, that a four-level enhancement would be
applied pursuant to § 2G2.2(b)(4) because the material portrayed
conduct of a sadistic or masochistic nature. Fifth, that
another two-level enhancement would be applied pursuant to §
2G2.2(b)(5) because the offense involved a computer. And
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finally, that a five-level enhancement would also be applied
pursuant to § 2G2.2(b)(7)(D) because the offense involved more
than six-hundred images of pornography. Guerra’s total offense
level, as calculated pursuant to the agreement, was 36.
The district court adopted the conclusions set forth in the
PSR and calculated a Guidelines range of 188-235 months in
prison. The district court, however, recognized that the
maximum term of imprisonment for a violation of § 2252A(a)(5)(B)
was limited to 120 months under 18 U.S.C. § 2252(b)(2) & USSG §
5G1.1(a).
Guerra moved for a downward variance. In support of his
motion, he filed a sentencing memorandum that raised two issues:
(1) the policy disagreements over the application of USSG
§ 2G2.2; and (2) the individual application of the 18 U.S.C.
§ 3553(a) factors to his case.
At the sentencing hearing, Guerra’s parents and a counselor
from his substance abuse program testified regarding Guerra’s
character and history of sexual abuse. At the conclusion of
Guerra’s presentation, the district court acknowledged the
§ 3553(a) factors and explained how they applied to Guerra’s
case. Focusing on the seriousness of Guerra’s conduct, the
district court denied Guerra’s motion and sentenced him to 120
months’ imprisonment. He timely appeals.
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II.
We review the district court’s sentence under an abuse-of-
discretion standard, regardless of whether that sentence is
inside or outside the Guidelines range. Gall v. United States,
552 U.S. 38, 49 (2007). The Supreme Court has admonished that
our review of a district court’s sentencing decision is limited
to the determination of whether the sentence is reasonable.
United States v. Booker, 543 U.S. 220, 224 (2005).
Our review of Guerra’s sentence for reasonableness entails
a two-step analysis. Gall, 552 U.S. at 51. First, we must
ensure that the district court committed no significant
procedural error. Id. at 50. In assessing the procedural
reasonableness of a sentence--whether the district court has
properly applied the Guidelines--we review factual findings for
clear error and legal conclusions de novo. United States v.
Llamas, 599 F.3d 381, 387 (4th Cir. 2010). If the district
court’s sentencing decision is procedurally sound, we then
examine the substantive reasonableness of the sentence amongst
the totality of the circumstances. Id. at 51. Gall permits us
to apply a presumption of reasonableness if the sentence imposed
is within the Guidelines range. Id.
III.
A.
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Our initial inquiry of procedural reasonableness focuses on
whether the district court (1) correctly calculated the
applicable Guidelines range; (2) considered the factors under
§ 3553(a) and determined whether they supported the chosen
sentence; (3) made an individualized assessment based on the
facts; and (4) adequately explained the chosen sentence to allow
for meaningful appellate review. Gall, 552 U.S. at 49-50.
Guerra argues that his sentence is procedurally
unreasonable for three reasons: (1) the district court did not
properly consider the § 3553(a) factors; (2) the district court
relied on an incorrect Guidelines range; and (3) the district
court did not adequately explain his sentence. We consider each
contention in turn.
1.
Guerra contends that the district court failed to properly
apply the § 3553(a) factors to his case in two ways. First, he
argues that the court made “sweeping generalizations” regarding
his conduct that are insufficient to constitute an
individualized assessment under Gall. Second, he contends that
the only determinations made that were specific to his conduct
weighed in his favor. The government responds that the court
properly addressed all of the § 3553(a) factors and that the
nature and seriousness of Guerra’s conduct weighed against a
downward variance.
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We reject Guerra’s arguments. We have previously held that
a district court is not required to provide a lengthy
explanation of all the factors under § 3553(a). United States
v. Susi, 674 F.3d 278, 289 (4th Cir. 2012). And as we have many
times explained, the court need not “robotically tick through
§ 3553(a)’s every subsection” to conduct an individual
assessment. United States v. Carter, 564 F.3d 325, 329 (4th
Cir. 2009).
In this case, the district court highlighted the nature and
seriousness of Guerra’s conduct, referencing paragraphs 10
through 22 of the PSR. J.A. 199. Based on the number of images
recovered--“some 1,816”—and the graphic nature of the sexual
violence portrayed in those images, the court concluded that
Guerra may pose a risk to society. J.A. 202. The court also
noted that people need to be deterred from viewing child
pornography because it promotes the abuse of children. J.A.
198. While the district court acknowledged that certain
mitigating factors weighed in Guerra’s favor, it ultimately
concluded that the fact that Guerra “made [child pornography]
available to others” weighed against a variance. J.A. 199.
Because the district court acted well within its discretion
in determining the weight given to each of the § 3553(a)
factors, we conclude that the district court’s explanation of
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Guerra’s sentence was sufficient to constitute an
“individualized assessment” under Gall. 552 U.S. at 51.
2.
Next, Guerra argues that the district court relied on an
incorrect Guidelines range in determining his sentence. He
contends that the district court improperly considered what the
Guidelines range would have been but for the statutory maximum
when assessing the appropriate sentence. The government
responds that the district court properly determined that the
statutory maximum sentence was the Guidelines sentence, not a
variance sentence, and that, any challenge to the 120-month
sentencing guideline should be reviewed for plain error because
Guerra did not object at the hearing.
We agree with the government. USSG § 5G1.1(a) instructs a
district court to apply the statutory maximum sentence if the
maximum sentence allowed by statute is less than what the
Guidelines range otherwise would have been. United States v.
Carr, 395 F. App’x 983, 987 (4th Cir. 2010) (unpublished).
Applying the enhancements recommended in the PSR, the
district court observed that the applicable Guidelines range was
188-235 months in prison. The district court acknowledged that
the statutory range was limited to 120 months under 18 U.S.C.
§ 2252(b)(2) and applied USSG § 5G1.1(a)--noting that a
statutory maximum sentence would not be a variance, but a
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Guidelines sentence. 1 Consequently, Guerra’s argument fails
under both the abuse-of-discretion and plain error standards
because he has not shown that the court considered the higher
Guidelines range to be an aggravating factor in its sentencing
decision.
3.
Lastly, Guerra argues that the district court committed
procedural error by failing to adequately explain its sentence.
First, he contends that the court “reiterated the generic
enhancements” and failed to individually assess the § 3553(a)
factors based on the record. Second, he argues that the
district court did not provide a written explanation of the
sentence in the statement of reasons. The government asserts
that Guerra has failed to satisfy his burden to show the
inadequacy of the court’s explanation, and that alternatively,
any error was harmless.
We find first that the district court adequately assessed
the § 3553(a) factors. “Where a matter is conceptually simple
and the record makes clear that the district court considered
the evidence and arguments, the law does not require the court
1
Guerra’s reference to U.S. v. Dorvee, 616 F.3d 174, 180
(2nd Cir. 2010) is not dispositive. We find Dorvee to be
distinguishable because, unlike the present case, the district
court there improperly treated the higher guidelines sentence
“as though it were the benchmark for any variance.” Id. at 181.
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to write more extensively.” Rita v. United States, 551 U.S.
338, 359 (2007). Instead, our cases only require a district
court to provide some indication that it considered (1) the
§ 3553(a) factors with respect to the defendant; and (2) the
meritorious arguments raised by both parties as to a proper
sentence. United States v. Montes-Pineda, 445 F.3d 375, 380
(4th Cir. 2006).
In our view, Guerra’s argument that the court “reiterated
the generic enhancements” misses the mark because he fails to
point out which of the § 3553(a) factors the court applied
generally so as to make his sentence unreasonable. To the
contrary, the record shows that the district court based its
sentence on facts specific to Guerra’s conduct.
We also find that the district court’s failure to provide a
written explanation of Guerra’s sentence in the statement of
reasons is harmless error. In that regard, we agree with the
reasoning of our sister circuits that have reached this same
conclusion. See, e.g., United States v. Mendoza, 543 F.2d 1186,
1196 (10th Cir. 2008) (holding that failure to provide a written
statement is harmless error when the district court gives an
adequate verbal explanation of its reasons for the sentence). 2
2
See also, United States v. Jennings, 407 F. App’x 20, 21
(6th Cir. 2011)(unpublished); United States v. Jones, 509 F.3d
(Continued)
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B.
In light of our conclusion that the district court’s
sentencing decision is procedurally sound, [we] now “consider
the substantive reasonableness of the sentence . . . amongst the
totality of the circumstances.” Gall, 552 U.S. at 51. Gall
permits us to apply a presumption of reasonableness if the
sentence is within the Guidelines range, and the fact that we
might reasonably have imposed a different sentence is
insufficient to justify reversal. Id.
Guerra argues that his sentence is substantively
unreasonable for two reasons: (1) the district court did not
address the policy issues raised in his Sentencing Memorandum;
and (2) the district court relied on an improper sentencing
factor. We disagree.
1.
Guerra argues that the district court failed to consider
the policy arguments he presented in determining his sentence.
Specifically, he contends the court did not address: (1) the
“widespread concerns” with the application of USSG § 2G2.2; (2)
cases similar to Guerra’s where variances were applied; and (3)
911, 916 (8th Cir. 2007); United States v. Thomas, 313 F. App’x
280, 283 (11th Cir. 2009) (per curiam).
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why Guerra’s own sexual abuse was or was not a factor in
sentencing.
We believe the record establishes that the district court
properly considered the policy issues raised by Guerra. First,
the record shows that the court engaged in a discussion with
Guerra’s counsel regarding the application of USSG § 2G2.2.
After Guerra argued that the § 2G2.2 enhancement was “dictated
by fiat,” the district court noted that “Congress holds hearings
and reviews a lot of information before they send something to
the commission.” J.A. 171-174.
Second, the district court was unable to determine whether
Guerra’s sentence imposed an unwarranted disparity because it
did not have before it sufficient relevant information. At the
hearing, Guerra failed to offer any statistics or case law
regarding the application of § 2G2.2 within this circuit. The
district court also concluded that the cases Guerra offered were
not helpful to its determination, stating that “without knowing
the specifics . . . the information could not be meaningfully
used.” J.A. 207.
Third, the district court did in fact consider Guerra’s
history of sexual abuse as a mitigating factor, albeit with a
tinge of irony given Guerra’s offense. Unpersuaded, the court
explained its view that, “such a personal history should cause
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an individual not to involve themselves in images that promote
the production of child pornography.” J.A. 206.
We find no abuse of discretion in the district court’s
disposition of Guerra’s policy arguments.
2.
Finally, Guerra contends that his sentence is substantively
unreasonable because the district court relied on an improper
factor when imposing sentence. Specifically, he asserts that
the court considered the need for rehabilitation as a sentencing
factor in violation of 18 U.S.C. § 3582(a), when it briefly
expressed its hope that “[Guerra] would get treatment for
matters that happened to him before [his involvement] with child
pronography.” J.A. 210. The government responds that the basis
for Guerra’s sentence was the nature and seriousness of his
conduct, not the need for rehabilitation, and that, because
Guerra failed to object to the court’s remark, his challenge
should be reviewed for plain error.
We review Guerra’s challenge for plain error as a
consequence of his failure to object. Thus, Guerra bears the
burden of establishing (1) that the district court erred; (2)
that the error was “plain”; and (3) that the error affected the
outcome of the proceeding. United States v. Olano, 507 U.S.
725, 734-35 (1993). While we have discretion to correct a
forfeited error, we should not do so unless the error “seriously
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affect[s] the fairness, integrity or public reputation of
judicial proceedings.” Id. at 732. In our view, Guerra cannot
show error because the record establishes that his sentence was
not imposed or lengthened to promote his rehabilitation.
We are satisfied that the district court based its sentence
on the nature and seriousness of Guerra’s conduct. The court
found that Guerra possessed and distributed 1,816 child
pornography images involving children under the age of twelve
years old, some of which portrayed acts of sexual violence.
Because the topic of rehabilitation was raised only after the
court denied Guerra’s motion for a downward variance, we find
that the length or imposition of Guerra’s sentence was not
premised upon a motive or intention that Guerra would receive
rehabilitative treatment.
In sum, we are not persuaded that Guerra’s sentence is
substantively unreasonable.
IV.
For the foregoing reasons, we affirm the judgment of the
district court. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
material before this court and arugment would not aid the
decisional process.
AFFIRMED
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