Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
5-22-2009
USA v. Velazquez
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-3644
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"USA v. Velazquez" (2009). 2009 Decisions. Paper 1322.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-3644
UNITED STATES OF AMERICA
v.
WITHBERTO VELAZQUEZ,
Appellant.
Appeal from the United States
District Court for the Middle District of Pennsylvania
(D.C. No. 3-07-cr-00454-001)
District Court Judge: Honorable A. Richard Caputo
Submitted Under Third Circuit L.A.R. 34.1(a)
May 19, 2009
Before: RENDELL and GARTH, Circuit Judges, and
PADOVA, Senior District Judge*
(Opinion Filed: May 22, 2009)
OPINION
GARTH, Circuit Judge:
*
The Honorable John R. Padova, Senior United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
Appellant Withberto Velazquez (“Velazquez”) was the target of an FBI child
pornography investigation in January 2007. An FBI agent, in a Yahoo! chat room, posed
as a 14-year-old girl in Pennsylvania. Velazquez attempted to persuade the “girl” to
travel to Mississippi to have sex with him. He sometimes posed as his 14-year-old
daughter in order to convince the “girl” that this plan was a good idea. Velazquez also
transmitted naked pictures of himself and pornographic pictures of children to the agent
posing as the girl. He eventually made travel arrangements for the “girl” to travel from
Pennsylvania to his apartment in Mississippi.
The FBI identified Velazquez by his computer’s Internet Protocol address, and
executed a search warrant at his residence. The FBI seized his computer equipment and
discovered extensive amounts of child pornography – a total of 46,222 images consisting
of 615 videos and 97 still images, many depicting disturbing, violent, or sadistic acts.
Velazquez was indicted in the Middle District of Pennsylvania for using a facility
of interstate commerce to attempt to persuade, induce, and entice a minor to engage in
illegal sexual acts (18 U.S.C. § 2422(b) (Count I)); attempting to persuade an individual
to travel in interstate commerce to engage in illegal sexual acts (18 U.S.C. § 2422(a)
(Count II)); and receipt of child pornography (18 U.S.C. § 2252(a)(2) (Count III)).1
Velazquez pleaded guilty to Counts I and III and the government dismissed Count II.
1
Count I carries a mandatory minimum sentence of 10 years. Count III carries a
mandatory minimum sentence of 5 years.
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Velazquez’s offense level under Guideline 2G2.2 was 43;2 with a Criminal History
Category of I, the Guidelines range was life imprisonment. Velazquez objected to the 5-
level enhancement for “pattern of activity” under Guideline 2G2.2(b)(5). The
government conceded to abandoning this enhancement, but the parties agreed on a 4-level
enhancement because Velazquez had possessed more than 600 images. The final
Guidelines range became 360 months to life.
Velazquez was sentenced on August 15, 2008. Defense counsel asked for a
downward variance under 18 U.S.C. § 3553(a) totaling 15 years, thus combining the
mandatory minimum sentences of Counts I and III. Counsel argued this sentence was
sufficient, but not more than necessary, to satisfy the Section 3553(a) factors. The
District Court disagreed, and on August 15, 2008, sentenced Velazquez to 360 months
under Count I, and a concurrent 240 months under Count III. Velazquez timely appealed.
I.
Velazquez argues that a 30-year sentence was “unreasonably harsh” because the
District Court relied on child pornography Sentencing Guidelines “that deserve little or no
deference because they are not empirically based” and because a 15-year sentence would
2
This included a base offense level of 22, plus enhancements for material
involving children under 12; distribution of child pornography to a minor intended to
entice the minor to engage in illegal sexual conduct; material portraying sadomasochistic
conduct or violence; use of a computer; a pattern of activity involving exploitation or
abuse of minors; and possession of more than 600 images of child pornography. After
various Guideline adjustments, Velazquez and the government agreed on an offense level
of 42. This adjustment does not affect Velazquez’s sentence or our conclusion.
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have been sufficient “but not greater than necessary” to advance the sentencing factors set
forth in 18 U.S.C. § 3553(a).
The parties agreed on Velazquez’s Guidelines range. Velazquez emphasized his
previously clean record, his severe physical and psychological injuries from his service in
the United States Navy, and his difficult upbringing in his argument for a downward
variance.
The government agreed that Velazquez’s military service should be considered,
but based on the seriousness of the offenses, requested a 30-year sentence–the bottom of
the Guidelines range. The government argued that Velazquez admitted that he would
have had sex with a 14-year-old had he not been arrested first, and stressed the
extraordinary number of images as an important factor.
The District Court engaged in a lengthy discussion of the Section 3553(a) factors.
As to the “nature and circumstances of the offense,” the court said the conduct was “so
insidious because of the ease with which it is purveyed on the internet and the impact that
it has on these young people . . . because of the market that exists . . . .” App. 65.
The court considered the “history and characteristics of the defendant.” It
acknowledged Velazquez’s honorable service in the Navy, the positive letters received on
Velazquez’s behalf, Velazquez’s lack of a criminal record, and his injuries. App. 65-66.
The court addressed the seriousness of the offense and the need to promote respect
for the law and to provide a just punishment, noting that this type of offense is “one of the
more serious things in my mind that we have in this society. . . . [I]n order to watch it
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somebody has to make it. And in making it, someone has to exploit minors in such a way
that is really unspeakable.” App. 65.
Deterrence was also a significant factor in the court’s sentence. The court wished
to “send a message to the world . . . that anybody that does this sort of thing is going to
suffer severe consequences because the only way to root it out is to have the demand for
it evaporate.” App. 66. Furthermore, the court acknowledged that Velazquez would need
some sort of “continuing treatment,” and would recommend the same.
Lastly, the court noted that it had sentenced defendants in similar cases, and that
Velazquez’s conduct was “on a close par with those” cases. App. 67. Accordingly, the
District Court handed down a sentence of 360 months.
II.
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. §§ 1291 and 3742(a). We review for abuse of discretion. United States
v. Wise, 515 F.3d 207, 218 (3d Cir. 2008). This standard is highly deferential. We can
not reverse a District Court merely because we disagree with a sentence. If the sentence
“falls within the broad range of possible sentences that can be considered reasonable in
light of the § 3553(a) factors, we must affirm.” Id.
“Ultimately, ‘[t]he touchstone of “reasonableness” is whether the record as a
whole reflects rational and meaningful consideration of the factors enumerated in 18
U.S.C. § 3553(a).’” United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (quoting
United States v. Grier, 475 F.3d 556, 571 (3d Cir. 2007) (en banc)); see also United States
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v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006).
Here, the District Court more than adequately considered the factors, and its
colloquy was extensive and reasonable. Further, the sentence was at the bottom of the
Guidelines range, so we would be hard-pressed to hold that the sentence did not fall
within the range of reasonable sentences. See United States v. Hoffecker, 530 F.3d 137,
204 (3d Cir. 2008) (“Although we do not deem a within-Guidelines sentence
presumptively reasonable, it is ‘more likely to be reasonable than one that lies outside the
advisory guidelines range.’ Cooper, 437 F.3d at 331. This sentence was, if anything, on
the low side of the range of reasonable sentences.”).
III.
The narrow issue here is whether the District Court abused its discretion by relying
on the child pornography Guidelines, which Velazquez contends are unreliable.
Velazquez analogizes the crack cocaine Guidelines (the subject of Kimbrough v. United
States, 128 S. Ct. 558 (2007)) to the child pornography Guidelines.
The Supreme Court in Kimbrough noted that the crack cocaine Guidelines “do not
exemplify the [Sentencing] Commission’s exercise of its characteristic institutional role”
because the Commission did not consider empirical research in formulating them.3
Kimbrough, 128 S. Ct. at 575. Indeed, the Court noted, “the Commission itself has
3
The Commission looked instead to the Anti-Drug Abuse Act of 1986, § 1004(a),
21 U.S.C. § 841(b)(1)(A)(ii-iii), (b)(1)(B)(ii-iii), which employed a weight-based formula
to determine the “seriousness” of drug offenses.
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reported that the crack/powder disparity produces disproportionately harsh sanctions.” Id.
Thus, the Court held that “it would not be an abuse of discretion for a district court
to conclude when sentencing a particular defendant that the crack/powder disparity yields
a sentence ‘greater than necessary’ to achieve § 3553(a)’s purposes, even in a mine-run
case.” Id. Accordingly, “as a general matter, ‘courts may vary [from Guidelines ranges]
based solely on policy considerations, including disagreements with the Guidelines.’” Id.
at 570; see also Spears v. United States, 129 S. Ct. 840, 843 (2009) (clarifying
Kimbrough; District Courts may vary from the crack cocaine Guidelines based on policy
disagreements, “and not simply based on an individualized determination that they yield
an excessive sentence in a particular case”).
Because the child pornography Guidelines, like the crack cocaine Guidelines, were
not established pursuant to empirical research, and instead were established by an act of
Congress,4 Velazquez argues that the District Court should not have relied upon the
Guidelines, citing Kimbrough and its progeny for the proposition that reliance on child
pornography Guidelines is an abuse of discretion.
Case law does not support Velazquez’s argument, and he does not otherwise
substantively challenge the child pornography Guidelines. Because his sentence was
otherwise substantively reasonable, we have no justification for reversing the District
4
Congress, through the PROTECT Act, Pub. L. No. 108-21 (2003), increased the
mandatory minimum and maximum sentences, increased base offense levels, and added
an enhancement for, inter alia, number of images, in child pornography cases.
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Court’s sentence because of its reliance on a currently valid Guideline. Even if we were
to disagree with the District Court’s sentence or the policy behind the Guidelines, this is
not grounds for a reversal when the sentence was otherwise reasonable.5 See generally
United States v. Tomko, 562 F.3d 558 (3d Cir. 2009).
Velazquez’s secondary argument – that a 15-year sentence would have been
sufficient to satisfy the Section 3553(a) factors – is meritless as well. Velazquez argues
that the District Court’s denial of his request for a downward variance to 15 years was
error. As noted above, the District Court meaningfully and thoroughly considered the
Section 3553(a) factors, and its sentence was substantively reasonable. Accordingly, the
District Court did not abuse its discretion in refusing to grant Velazquez a downward
variance. See Wise, 515 F.3d at 218.
IV.
We will affirm the District Court’s August 15, 2008 judgment.
5
Indeed, we have even held that “[i]n evaluating the magnitude of the harm
caused by child pornography, we defer to the findings made by Congress.” United States
v. MacEwan, 445 F.3d 237, 249 (3d Cir. 2006).
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