United States v. Wayerski

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 26, 2010
No. 09-11379 JOHN LEY
________________________ CLERK

D. C. Docket No. 08-00022-CR-3-LAC

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ERIK WAYERSKI,
a.k.a. Lerch,

Defendant-Appellant.

________________________

No. 09-11380
________________________

D. C. Docket No. 08-00022-CR-3-LAC

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus
RAYMOND ROY,
a.k.a. Nimo,

Defendant-Appellant.

________________________

No. 09-11478
________________________

D. C. Docket No. 08-00022-CR-3-LAC

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOHN MOSMAN,
a.k.a. Pickleman,

Defendant-Appellant.

________________________

No. 09-12318
________________________

D. C. Docket No. 08-00022-CR-3-LAC

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

2
 versus

STEPAN BONDARENKO,
a.k.a. Bumhead,

Defendant-Appellant.

________________________

Appeals from the United States District Court
for the Northern District of Florida
_________________________

(October 26, 2010)

Before TJOFLAT, CARNES and REAVLEY,* Circuit Judges.

REAVLEY, Circuit Judge:

In this consolidated appeal, Erik Wayerski, Raymond Roy, John Mosman,

and Stepan Bondarenko appeal their convictions and sentences for engaging in

multiple child-pornography offenses. All four co-defendants were convicted of

engaging in a child exploitation enterprise, in violation of 18 U.S.C. § 2252A(g);

conspiring to advertise, transport, receive, and possess child pornography and to

obstruct justice, in violation of 18 U.S.C. §§ 371, 1512(k), 2251(d)(1) and (e), and

2252A(a)(1) and (b)(1); and advertising the exchange of child pornography, in

violation of 18 U.S.C. § 2251(d)(1). In addition, Wayerski and Roy were

*
Honorable Thomas M. Reavley, United States Circuit Judge for the Fifth Circuit, sitting
by designation.

3
convicted of transporting and shipping child pornography, in violation of 18

U.S.C. § 2252A(a)(1), and receipt of child pornography, in violation of 18 U.S.C.

§ 2252A(a)(2). Finally, Wayerski was also convicted of obstruction of justice, in

violation of 18 U.S.C. § 1512(c)(2).

The defendants raise five issues on appeal in their individual briefs and by

adopting each other’s arguments. Their primary issue is that the statute of

conviction for engaging in a child exploitation enterprise, 18 U.S.C. § 2252A(g), is

unconstitutionally vague. We hold that § 2252A(g) is not impermissibly vague,

and we affirm the convictions of all defendants. However, we also agree with the

Government’s concession of error that the defendants’ convictions for both

engaging in a child exploitation enterprise and for a conspiracy premised on the

same acts was impermissible. We reject all other claims of error, and we remand

to the district court for the appropriate modification of the judgments.

I.

All of the defendants argue that their convictions under 18 U.S.C.

§ 2252A(g) for engaging in a child exploitation enterprise should be vacated

because § 2252A(g) is unconstitutionally vague under the Fifth Amendment. They

assert that § 2252A(g) fails to provide fair notice of what conduct it proscribes,

does not provide law enforcement with sufficient standards, and leads to absurd

4
results not intended by Congress. We disagree.

We review whether a criminal statute is unconstitutionally vague de novo.

United States v. Duran.1 Where, as in this case, a vagueness challenge does not

involve the First Amendment, the analysis must be as applied to the facts of the

case.2 “Vagueness” is an outgrowth of the Fifth Amendment’s Due Process

Clause. United States v. Williams.3 It encompasses notions of fair warning such

that people of common intellect may understand a statute’s prohibitions and need

not guess at its meaning. United States v. Hunt.4 A criminal statute will violate

due process if it “fails to provide people of ordinary intelligence a reasonable

opportunity to understand what conduct it prohibits” or “it authorizes or even

encourages arbitrary and discriminatory enforcement.” Hill v. Colorado.5 There is

a strong presumption that statutes passed by Congress are valid. United States v.

1
596 F.3d 1283, 1290 (11th Cir. 2010) (citing United States v. Paradies, 98 F.3d 1266,
1282 (11th Cir. 1996)). Because Defendant Bondarenko did not argue that § 2252A(g) was
unconstitutionally vague before the district court, we review his arguments in this regard for
plain error only. See United States v. Smith, 532 F.3d 1125, 1126 (11th Cir. 2008). “In order to
find plain error, (1) there must be error; (2) the error must be plain; and (3) the error must affect
substantial rights.” Id. (Internal quotation marks and citation omitted).
2
Duran, 596 F.3d at 1290; see also United States v. Marte, 356 F.3d 1336, 1342 (11th
Cir. 2004).
3
553 U.S. 285, 304, 128 S. Ct. 1830, 1845 (2008).
4
526 F.3d 739, 743 (11th Cir. 2008).
5
530 U.S. 703, 732, 120 S. Ct. 2480, 2498 (2000).

5
Nat’l Dairy Prods. Corp.6

The first step in a vagueness inquiry is to examine the plain language of the

statute.7 “The touchstone of the inquiry is the meaning of the statute in light of

common understanding and practice.”8 When the plain text of the statute sets forth

clearly perceived boundaries, our inquiry is ended.9

Under § 2252A(g), a person who engages in a “child exploitation enterprise”

is subject to imprisonment “for any term of years not less than 20 or for life.”10

The statute provides that

[a] person engages in a child exploitation enterprise for the purposes
of this section if the person violates section 1591, section 1201 if the
victim is a minor, or chapter 109A (involving a minor victim), 110
(except for sections 2257 and 2257A), or 117 (involving a minor
victim), as a part of a series of felony violations constituting three or
more separate incidents and involving more than one victim, and
commits those offenses in concert with three or more other persons.11

The defendants argue that the statute is vague because it is unclear how a “series of

felony violations constituting three or more separate incidents” may occur. We do

6
372 U.S. 29, 32, 83 S. Ct. 594, 597 (1963).
7
Duran, 596 F.3d at 1291.
8
Hunt, 526 F.3d at 743.
9
Duran, 596 F.3d at 1291.
10
18 U.S.C. § 2252A(g)(1).
11
Id. § 2252A(g)(2).

6
not find the statute impermissibly vague, however, especially in light of the facts of

the instant case.12 We agree with the Government that a person of ordinary

intelligence would, under a fair reading of the statute, understand that an offense is

committed when (1) he commits any of several enumerated predicate offenses, (2)

the predicate offenses comprise a series of three felony violations on three or more

separate instances, (3) the offense involves more than one victim, and (4) he

commits the predicate offenses in concert with three or more other persons.

In the instant case, the defendants participated in a sophisticated group of

approximately 45 individuals who advertised and exchanged over the Internet

thousands of images and videos of child pornography involving numerous minor

children. An investigation by police lasting approximately two years revealed that

the defendants used complex encryption technology and procedures to facilitate

and conceal their activity. The defendants communicated with each other by using

innocent newsgroup websites, such as for cooking or music, to post secret

messages that would lead group members to the location of child pornography on

other sites, as well as instructions on how to decrypt the material. The group

limited its membership to known traders of child pornography who had been

recommended by another member. Members were instructed to use aliases and to

12
See Marte, 356 F.3d at 1342.

7
follow a written set of security measures and standard operating procedures to

further the exchange of the child pornography. During the course of the group’s

existence over 400,000 images and videos which had traveled in interstate

commerce via the Internet were advertised, transported, and/or received by its

members. Group members also made specific requests for and purchased the

production of new illicit material.

Nothing about § 2252A(g) is vague when applied in the context of the

defendants’ actions. Section 2252A(g) defines the predicate offenses that must be

committed. The defendants’ activity here satisfied the predicate offenses for

§ 2252A(g) because it violated at a minimum the prohibitions of 18 U.S.C.

§ 2251(d)(1), concerning the advertisement of child pornography, and 18 U.S.C.

§ 2252A(a)(1) and (2), concerning the transportation and receipt of child

pornography, which are Chapter 110 offenses covered in the child exploitation

enterprise statute. The offenses involved much more than three separate instances

and more than one victim, and they occurred in concert with more than three

people. Indeed, the defendants do not suggest that their own conduct falls outside

the reach of § 2252A(g). We therefore reject their vagueness challenge, as “‘[o]ne

to whose conduct a statute clearly applies may not successfully challenge it

8
[facially] for vagueness.’” Bama Tomato Co. v. U.S. Dep’t of Agriculture.13

The defendants argue that the statute is vague because the word “series” is

either undefined or is ambiguous as to whether it differs from the requirement that

there be multiple incidents. We are not persuaded by the defendants’

hypertechnical reading of the statute, however.14 We agree with the Government

that the statute clarifies that “series” means “three or more separate incidents” of

the enumerated predicate felony violations.

Defendants also present several hypotheticals purporting to show the

statute’s vagueness. For example, they argue that, contrary to Congress’ intent, the

statute may be unwittingly violated in a matter of minutes by a defendant who

receives and transports three or more images of child pornography involving more

than one child to three or more other persons. Even assuming the defendants could

present their facial challenge, however, “speculation about possible vagueness in

hypothetical situations not before the Court will not support a facial attack on a

statute when it is surely valid in the vast majority of its intended applications.”15

13
112 F.3d 1542, 1547 (11th Cir. 1997) (alteration in original) (quoting Parker v. Levy,
417 U.S. 733, 756, 94 S. Ct. 2547, 2562 (1974)).
14
See Hill, 530 U.S. at 733, 120 S. Ct. at 2498 (rejecting “hypertechnical theories as to
what the statute covers” as basis for vagueness challenge).
15
Id. (internal quotation marks and citation omitted).

9
We think “‘it is clear what the [statute] as a whole prohibits.’”16 It forbids the

commission of specified child pornography offenses that occur as a series of three

or more separate instances, involving two or more victims, and three or persons

acting in concert with the defendant. Section 2252A(g)’s plain language covered

the defendants’ conduct and satisfied the due process requirement for fair notice.17

We therefore hold that § 2252A(g) is not unconstitutionally vague as applied

to the defendants.

II.

Roy, Mosman, and Bondarenko argue that Count 1 of the indictment, which

alleged that the defendants engaged in a child exploitation enterprise, failed to

allege sufficiently a violation of § 2252A(g). They assert that Count 1 violated the

Fifth and Sixth Amendments because it failed to identify both the statutes and the

actions constituting the predicate offenses for a child exploitation enterprise.

Consequently, they claim that they were not provided with adequate notice of the

Government’s case and there was no assurance that the grand jury found probable

cause.

We review the sufficiency of an indictment de novo. United States v.

16
Id. (quoting Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S. Ct. 2294, 2300
(1972)).
17
See Hunt, 526 F.3d at 744.

10
Bobo.18 In “analyzing challenges to the sufficiency of an indictment, courts give

the indictment a common sense construction, and its validity is to be determined by

practical, not technical, considerations.” United States v. Poirier.19

An indictment is sufficient when it “(1) presents the essential elements of the

charged offense, (2) notifies the accused of the charges to be defended against, and

(3) enables the accused to rely upon a judgment under the indictment as a bar

against double jeopardy for any subsequent prosecution for the same offense.”

United States v. Woodruff.20 These requirements satisfy the Sixth Amendment’s

guarantee of notice to the accused of the nature and the cause of the accusation,

and the Fifth Amendment’s assurance that a grand jury will return an indictment

only when it finds probable cause for all elements of the crime. United States v.

Fern.21 “If an indictment specifically refers to the statute on which the charge was

based, the reference to the statutory language adequately informs the defendant of

the charge.”22 “Moreover, the constitutional standard is fulfilled by an indictment

that tracks the wording of the statute, as long as the language sets forth the

18
344 F.3d 1076, 1082–83 (11th Cir. 2003).
19
321 F.3d 1024, 1029 (11th Cir. 2003) (internal quotation marks and citations omitted).
20
296 F.3d 1041, 1046 (11th Cir. 2002) (internal quotation marks and citation omitted).
21
155 F.3d 1318, 1325 (1998).
22
Id.

11
essential elements of the crime.” United States v. Ndiaye.23 When the facts alleged

in the indictment permit an inference that the grand jury found probable cause, the

indictment satisfies the Fifth Amendment.24

In the instant case, Count 1 of the indictment charged the defendants as

follows:

That between on or about August 31, 2006, through the date of the
return of this superseding indictment, in the Northern District of
Florida and elsewhere, the defendants, [specifically named], did
knowingly and willfully engage in a child exploitation enterprise, that
is the advertisement, transportation and shipment of child
pornography, as defined in Title 18, United States Code, Section
2256(8)(A), in interstate and foreign commerce by means of a
computer, as a series of three or more separate incidents and involving
more than one victim, in violation of title 18, United States Code,
Section 2252A(g).

Under a practical interpretation of the indictment, Count 1 was plainly sufficient. It

specifically referred to and tracked the language of the statute on which it was

based, i.e. § 2252A(g), and provided notice to the defendants of the charges to be

defended. It alleged that the defendants engaged in a child exploitation enterprise

with specifically named co-defendants by advertising, transporting, and shipping

child pornography in interstate commerce, as part of a series of three or more

separate instances and involving more than one victim. Furthermore, it alleged the

23
434 F.3d 1270, 1299 (11th Cir. 2006) (internal quotation marks and citation omitted).
24
Fern, 155 F.3d at 1325.

12
time and place of the predicate violations. The indictment was adequate to apprise

the defendants of the charges and to plead double jeopardy in any future

prosecution for the same offense. See, e.g., United States v. Bascaro.25

Because Count 1 of the indictment cited § 2252A(g), tracked § 2252A(g)’s

language, and provided a general description of the facts and predicate offenses,

Count 1 sufficiently alleged a violation of § 2252A(g).

III.

Next, all of the defendants argue that their convictions for both engaging in a

child exploitation enterprise and conspiring to commit multiple child-pornography

offenses violated the Fifth Amendment’s Double Jeopardy Clause. The

Government concedes, and we agree, that the defendants are correct.

The Double Jeopardy Clause of the Fifth Amendment protects “against

multiple punishments for the same offense.” United States v. Nyhuis.26 To

determine whether a defendant has been punished twice for the same offense, we

25
742 F.2d 1335, 1348–49 (11th Cir. 1984) (finding sufficient an indictment alleging a
conspiracy offense that recited the essential elements of the offense by tracking statutory
language, identified specific co-conspirators as well the controlled substance involved, set forth
the time span of the conspiracy, and described the locale of the conspiracy), abrogated on other
grounds by United States v. Lewis, 492 F.3d 1219 (11th Cir. 2007).
26
8 F.3d 731, 734 (11th Cir. 1993) (internal quotation omitted).

13
apply the test of Blockburger v. United States. See Rutledge v. United States.27

Under the Blockburger test, “[i]f the same act or transaction constitutes a violation

of two distinct statutory provisions, the test to be applied to determine whether

there are two offenses or only one, is whether each provision requires proof of a

fact which the other does not.”28 Accordingly, “two different statutes define the

‘same offense,’ typically because one is a lesser included offense of the other.”29

The defendants contend that their conspiracy convictions are subsumed

within their convictions for a child exploitation enterprise because § 2252A(g)’s

requirement that at least three individuals act “in concert” to form an “enterprise”

is essentially a conspiracy, and as such, their conspiracy convictions are lesser

included offenses. In support of their argument, defendants rely on Rutledge.

In Rutledge, the Supreme Court held that a drug conspiracy conviction, in

violation of 21 U.S.C. § 846, was a lesser included offense of a continuing criminal

enterprise conviction, in violation of 21 U.S.C. § 848.30 The Court reasoned that

the requirement for a continuing criminal enterprise offense that the defendant

27
517 U.S. 292, 297, 116 S. Ct. 1241, 1245 (1996) (citing Blockburger v. United States,
284 U.S. 299, 304, 52 S. Ct. 180, 182 (1932)).
28
Id. (internal quotation and citation omitted).
29
Id.
30
Id. at 300, 116 S. Ct. at 1247.

14
have acted “in concert” with others required proof of an agreement that would also

violate the conspiracy statute.31 Because the conspiracy offense did not require

proof of any fact that was not also part of the continuing criminal enterprise

offense, a straightforward application of the Blockburger test resulted in the

conclusion that the conspiracy statute did not define a separate offense and was a

lesser included offense of the more serious crime for a continuing criminal

enterprise.32

Similarly here, § 2252A(g) requires proof that a defendant acted “in concert”

with at least three other persons. This conduct is an element of the child

exploitation enterprise offense that requires the same proof of an agreement that

would also violate the conspiracy offense charged in Count 2 of the defendants’

indictment.33 Because the defendants’ conspiracy convictions did not require proof

of facts different from the child exploitation enterprise offense’s “in concert”

requirement, we hold that the defendants’ conspiracy convictions were lesser

included offenses and violated the Double Jeopardy Clause. Accordingly, we

remand to the district court with instructions to vacate the defendants’ conspiracy

convictions. As a consequence of our decision, we vacate the judgment insofar as

31
Id.
32
Id.
33
See id.

15
the conspiracy count is concerned. In light of that action we also vacate the

sentence and remand for resentencing, but we “commit the decisions as to whether

to conduct a resentencing hearing and as to the scope of any such hearing to the

discretion of the district court.” See United States v. Gari.34

IV.

Roy and Mosman argue that the district court erred by applying a two-level

sentence enhancement for obstruction of justice pursuant to U.S.S.G. § 3C1.1.

However, we find no clear error.35

The Sentencing Guidelines provide for a two-level enhancement to the base

offense level if

(A) the defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice with respect to the
investigation, prosecution, or sentencing of the instant offense of
conviction, and (B) the obstructive conduct related to (i) the
defendant’s offense of conviction and any relevant conduct; or (ii) a
closely related offense[.]36

The presentence investigation report detailed numerous obstructive actions that the

defendants took during the course of their child exploitation enterprise to avoid

34
572 F.3d 1352, 1366 (11th Cir. 2009).
35
See United States v. Patti, 337 F.3d 1317, 1324 (11th Cir. 2003) (“We review the
district court’s determination that the defendant’s conduct warrants an obstruction of justice
enhancement for clear error.”).
36
U.S.S.G. § 3C1.1 (2008).

16
detection and thwart any law enforcement investigation. For example, as a group

the defendants used continuously changing encryption keys to decipher and

encrypt material posted to newsgroups; periodically moved from one newsgroup to

another and changed their nicknames; used sophisticated computer file swapping

techniques requiring special instructions to re-assemble files; and used special

software programs that could lock down a computer or wipe it clean should law

enforcement enter a member’s home.

Roy and Mosman make no argument that these actions were not obstructive

conduct. They argue that the obstruction enhancement was inapplicable because,

even though they took numerous precautions to avoid detection, they were not

under arrest and did not know that they were under investigation at the time they

took these precautions. This argument is unavailing. The Guidelines’ commentary

specifically provides that “[o]bstructive conduct that occurred prior to the start of

the investigation of the instant offense of conviction” may be covered by the

Guideline.37 Moreover, we have previously recognized that “[t]here is no

requirement that defendant’s obstructive acts occur subsequent to the formal

commencement of an investigation[.]” United States v. Garcia.38 The defendants’

37
Id. § 3C1.1, comment. (n.1).
38
208 F.3d 1258, 1262 (11th Cir. 2000), vacated and remanded on other grounds by
Garcia v. United States, 531 U.S. 1062, 121 S. Ct. 750 (2001), reinstated by United States v.
Garcia, 251 F.3d 160 (11th Cir. 2001) (unpublished).

17
affirmative steps to prevent law enforcement from detecting their illicit activity and

to impede any investigation show that they consciously acted with the purpose of

obstructing justice. See United States v. Massey.39

We also reject Roy’s and Mosman’s contention that the district court erred

by failing to make detailed findings setting forth the conduct that amounted to

obstruction of justice. There is no need for a district court to make specific

findings where, as in this case, it both adopts a presentence investigation report that

contains specific findings and the defendant fails to request that the court make

more specific findings. United States v. Smith.40

Because there is no requirement that a defendant be under arrest or know he

is being investigated at the time he commits obstructive acts, and the defendants

failed to request that the district court make more specific findings in addition to

those contained in the presentence investigation report, the district court did not err

in applying a two-level obstruction-of-justice enhancement.

V.

Finally, Wayerski and Roy argue that their sentences were unreasonable.

Both defendants were sentenced within their respective Guidelines ranges.

39
443 F.3d 814, 819 (11th Cir. 2006).
40
231 F.3d 800, 820 (11th Cir. 2000); see also United States v. Hubert, 138 F.3d 912, 915
(11th Cir. 1998).

18
Wayerski was sentenced at the top of his range to 365 months in prison, and Roy

was sentenced to 360 months, at the bottom of his range.

We review the reasonableness of a sentence under an abuse-of-discretion

standard. Gall v. United States.41 A defendant challenging his sentence bears the

burden of establishing that it is unreasonable. United States v. Talley.42 On appeal,

the analysis of the reasonableness of a sentence is a two-step process. United

States v. Pugh.43 First, we examine whether the district court committed any

significant procedural error. Second, after it has been determined that a sentence is

procedurally sound, we review the sentence’s substantive reasonableness.44

When reviewing for procedural reasonableness, we ensure that the district

court: (1) properly calculated the Guidelines range; (2) treated the Guidelines as

advisory; (3) considered the 18 U.S.C. § 3553(a) factors; (4) did not select a

sentence based on clearly erroneous facts; and (5) adequately explained the chosen

sentence.45

Substantive reasonableness involves examining the totality of the

41
552 U.S. 38, 46, 128 S. Ct. 586, 594 (2007).
42
431 F.3d 784, 788 (11th Cir. 2005).
43
515 F.3d 1179, 1190 (11th Cir. 2008).
44
Id.
45
Gall, 552 U.S. at 51, 128 S.Ct. at 597.

19
circumstances and whether the sentence is supported by the sentencing factors

outlined in § 3553(a). See United States v. Gonzalez.46 The § 3553(a) factors are:

(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 Sentencing Guidelines range; (8) pertinent
policy statements of the Sentencing Commission; (9) the need to
avoid unwanted sentencing disparities; and (10) the need to provide
restitution to victims.47

There is an expectation of reasonableness when a district court imposes a sentence

within the applicable Guidelines range.48

Neither Wayerski nor Roy can show that their sentences are unreasonable.

In both cases, the district court properly calculated the Guideline range, treated the

range as advisory, considered the statutory sentencing factors, and imposed a

sentence within the Guideline range that is supported by the § 3353(a) factors.49

Wayerski argues that his sentence is unreasonable because the district court

improperly assumed that he would pose a significant risk to children after he was

46
550 F.3d 1319, 1323–24 (11th Cir. 2008).
47
Talley, 431 F.3d at 786 (citing 18 U.S.C. § 3553(a)).
48
Id. at 788.
49
See Gonzalez, 550 F.3d at 1324.

20
released from prison, even though there was no support in the record for such an

assumption and he had no prior criminal history. He relies in part on the opinion

of psychologist Dr. James Larson, who conducted a court-ordered examination of

Wayerski and concluded that the risk of Wayerski re-offending once he is out of

prison was low. The district court acknowledged Dr. Larson’s opinion but noted

that other evidence in the record supported a conclusion that Wayerski could be a

danger to the community. The evidence included surreptitious videotapes of

neighborhood children that Wayerski filmed while making sexually explicit

comments and expressing a desire to rape the children. In addition, the

presentence investigation report noted that Wayerski had written, and posted on-

line, diaries about an eight-year old child who lived next door to him in which he

described various sexual acts he desired to commit upon the girl and her friends.

Wayerski had also attempted to videotape the girl through her bedroom window

while she was undressing. Dr. Larson apparently reached his conclusion about

Wayerski without reviewing the diaries or videos Wayerski created. Furthermore, a

search of Wayerski’s home revealed a pair of child’s underwear that matched a pair

of panties the child’s mother said were missing. In light of the record, the district

court’s conclusion that Wayerski posed a possible threat to the community was not

clearly erroneous.

21
 At sentencing, the district court specifically noted the above evidence and

indicated that it had considered the § 3553(a) factors, particularly the need to

protect the public and provide deterrence. The weight the district court gave to

these factors was within its sound discretion.50 Wayerski fails to show that the

district court abused its discretion and imposed an unreasonable sentence.51

Roy argues that his sentence is substantively unreasonable because the

Sentencing Guidelines for child-pornography offenses are irrational and not

empirically based, his criminal history category was misleading, and his conduct

was not so serious at to warrant the sentence he received. We are unpersuaded.

Roy fails to show how the totality of the circumstances or the sentencing factors of

§ 3353(a) render his sentence unreasonable. The district court sentenced Roy to

the bottom of his Guideline range specifically because of Roy’s efforts to

cooperate with the Government. The court noted that it had considered the

§ 3353(a) factors and believed a greater sentence was not necessary, but that the

sentence imposed served the sentencing goals of punishment and deterrence. It is

evident that the district court carefully considered the § 3553(a) sentencing factors,

and we can find no fault in the district court’s reasoning.

50
See United States v. Amedeo, 487 F.3d 823, 832 (11th Cir. 2007).
51
See Talley, 431 F.3d at 788.

22
 Both Wayerski and Roy argue that their conduct of receiving, transmitting,

and exchanging child pornography is insufficiently serious to warrant the harsh

sentences they received. We agree with the Government, however, that the

defendants understate the severity of their conduct and the harm caused by their

offenses. We have previously recognized the harm caused by child pornography

offenses. Those who receive and exchange child pornography create a demand

that influences the production of the pornography and the attendant physical and

emotional injury to children.52 “‘The logic of deterrence suggests that the lighter

the punishment for downloading and uploading child pornography, the greater the

customer demand for it and so the more will be produced.’”53 It was therefore not

unreasonable for the district court to consider the defendants’ offenses to be

serious and to conclude that significant sentences were warranted.

Because both Wayerski and Roy failed to demonstrate that the district court

abused its discretion, both of their sentences were reasonable. We therefore affirm

the district court’s judgments as to the total sentence imposed.

Conclusion

Upon review of the record and consideration of the parties’ arguments, we

52
See Pugh, 515 F.3d at 1194; see also Williams, 553 U.S. at 307, 128 S. Ct. at 1846
(“Child pornography harms and debases the most defenseless of our citizens.”).
53
Pugh, 515 F.3d at 1194 (quoting United States v. Goldberg, 491 F.3d 668, 672 (7th Cir.
2007)).

23
affirm except that the Count 2 convictions are vacated. The case is remanded for

the district court for resentencing, as discussed above.

AFFIRMED IN PART, VACATED AND REMANDED IN PART.

24