[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 9, 2010
No. 10-10628 JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 5:08-cr-00013-WTH-GRJ-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
MICHAEL REPLOGLE,
lllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(September 9, 2010)
Before MARCUS, MARTIN and FAY, Circuit Judges.
PER CURIAM:
Michael Replogle appeals his 135-month sentence imposed after pleading
guilty to receipt and distribution of child pornography, in violation of 18 U.S.C. §
2252(a)(2)(B) and (b)(1). On appeal, Replogle argues that his sentence, which
was at the bottom of the guideline range, violates the Eighth Amendment to the
United States Constitution; that he received ineffective assistance of counsel at
sentencing; and that the guidelines applicable to his offense are unduly harsh and
his sentence is therefore unreasonable. After review, we hold that Replogle’s
sentence does not plainly violate the Eighth Amendment and that his remaining
claims are barred by his sentence appeal waiver. Accordingly, we affirm.
I.
In late 2002, Immigrations and Customs Enforcement agents interviewed an
individual in California in connection with a child pornography investigation.
After admitting that he distributed child pornography, he provided agents written
consent to search his email account. This search showed that he had sent a
number images of child pornography to various America Online subscribers, one
of whom turned out to be Michael Replogle.
For reasons that are unknown, agents did not pursue Replogle at that time.
Nevertheless, some five years later, Replogle was contacted at his home in Florida
by a Lake County Sheriff’s Office detective. During this interview, Replogle
admitted that he had previously traded child pornography on the Internet, but
stated that he had not done so for some time. Replogle gave written consent to
2
search his computer. The detective found numerous images of young children
both clothed and naked, and engaged in various sex acts and poses, which
Replogle said he thought had been deleted. In a second interview with detectives,
Replogle again admitted trading child pornography on the Internet and saving the
images to his computer. After being shown some of these images, he admitted that
many of the children were under ten years old and that all were under the age of
eighteen. Agents then conducted a forensic examination of Replogle’s hard drive,
which revealed 228 images and one movie depicting child pornography. Five of
the images portrayed sadistic or masochistic conduct and many portrayed
prepubescent minors. Agents also recovered 111 emails dated between March and
June of 2005 with attached images of child pornography, of which eleven involved
children less than twelve years old and one portrayed sadistic or masochistic
conduct.
Replogle was indicted in the Middle District of Florida on one count of
knowingly receiving and distributing child pornography, in violation of 18 U.S.C.
§ 2252A(a)(2)(B) and (b)(1), and one count of knowingly possessing child
pornography that had been transported in interstate commerce, in violation of 18
U.S.C. § 2252A(a)(5)(B) and (b)(2). He pleaded guilty to the first count pursuant
to a written plea agreement, and the government agreed to dismiss the second
3
count. Under the plea agreement, Replogle expressly waived his right to appeal or
collaterally attack his sentence except in four limited circumstances: his sentence
exceeds either the guideline range determined by the district court or the statutory
maximum, violates the Eighth Amendment, or the government exercises its right
to appeal.
The presentence report (“PSR”) prepared by the U.S. Probation Office
determined Replogle’s base offense level was 22 under U.S.S.G. § 2G2.2(a)(2).
The PSR then recommended a total increase of fourteen levels because the
material had been distributed, involved prepubescent minors, and portrayed
sadistic or masochistic conduct; a computer had been used to transmit and view
the material over the Internet; and at least 300 but less than 600 images were
involved.1 After a three-level reduction for acceptance of responsibility,
Replogle’s total offense level was 33. With a Criminal History Category of I,
Replogle’s guideline range was 135 to 168 months.
Replogle did not object to the guideline calculations, but argued that he
should be sentenced to the mandatory minimum of five years based on the 18
U.S.C. § 3553(a) factors. In particular, he argued that the guidelines over-
1
Replogle was found to possess a total of 303 images. This included the 228 images
recovered from Replogle’s computer and one movie, which is deemed to equal 75 images under
the guidelines.
4
represented the seriousness of his offense because only a small fraction of the
images involved sadistic or masochistic conduct, and because he exceeded the
300-image threshold by just three images, and then only because the guidelines
arbitrarily assign a 75-image equivalency to a single video. He also pointed to
other factors the district court should consider, including his cooperation with
authorities, prior military service, and lack of a criminal record; that he had
already lost his job and his home as a result of his conduct; and that he had not
sent or received any images in the two years before his arrest. Ultimately, the
district court adopted the PSR as the findings of the court and sentenced Replogle
at the bottom of his guideline range. Replogle now appeals his sentence.2
II.
Replogle contends that his sentence violates the Eighth Amendment. This
argument was not raised in the district court, therefore we review Replogle’s
sentence only for plain error. United States v. Raad, 406 F.3d 1322, 1323 (11th
Cir. 2005). “Plain error occurs where (1) there is an error; (2) that is plain or
obvious; (3) affecting the defendant’s substantial rights in that it was prejudicial
2
Although Replogle did not initially appeal his sentence, he filed a motion under 28
U.S.C. § 2255 asserting that his attorney provided ineffective assistance for a number of reasons,
including that he did not timely file an appeal as Replogle instructed. The district court granted
Replogle’s motion to vacate and reimposed the 135-month sentence, thus enabling Replogle to
file a timely notice of appeal.
5
and not harmless; and (4) that seriously affects the fairness, integrity, or public
reputation of the judicial proceedings.” Id. (quotations omitted).
The Eighth Amendment provides that “[e]xcessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted.” U.S. Const. Amend. VIII. “The amendment ‘contains a narrow
proportionality principle that applies to noncapital sentences.’” United States v.
Johnson, 451 F.3d 1239, 1242 (11th Cir. 2006) (quoting Ewing v. California, 538
U.S. 11, 20, 123 S. Ct. 1179, 1185 (2003)) (internal quotation marks omitted).
“‘In general, a sentence within the limits imposed by statute is neither excessive
nor cruel and unusual under the Eighth Amendment.’” Id. at 1243 (quoting United
States v. Moriarty, 429 F.3d 1012, 1024 (11th Cir. 2005)). “This is so because we
accord substantial deference to Congress, as it possesses broad authority to
determine the types and limits of punishments for crimes.” Raad, 406 F.3d at
1323 (quotations omitted). For that reason, the Supreme Court has made it clear
that, “‘[o]utside the context of capital punishment, successful challenges to the
proportionality of particular sentences [will be] exceedingly rare.’” Solem v.
Helm, 463 U.S. 277, 289, 103 S. Ct. 3001, 3009 (1983) (quoting Rummel v.
Estelle, 445 U.S. 263, 272, 100 S. Ct. 1133, 1138 (1980) (alterations and emphasis
in original)).
6
In evaluating an Eighth Amendment challenge to a noncapital sentence, “a
reviewing court must make a threshold determination that the sentence imposed is
grossly disproportionate to the offense committed.” United States v. Reynolds,
215 F.3d 1210, 1214 (11th Cir. 2000). The defendant bears the burden of making
this showing. Johnson, 451 F.3d at 1243. “If the sentence is grossly
disproportionate, ‘the court must then consider the sentences imposed on others
convicted in the same jurisdiction and the sentences imposed for commission of
the same crime in other jurisdictions.’” Id. (quoting Raad, 406 F.3d at 1324).
Replogle has not shown that his sentence plainly violates the Eighth
Amendment. Replogle’s 135-month sentence, at the bottom of his guideline
range, is far below the 20-year statutory maximum for the offense. We have
frequently recognized that a sentence within the statutory limits generally does not
violate the Eighth Amendment, and that a defendant whose sentence falls below
the statutory maximum cannot make the threshold showing of disproportionality.
See, e.g., id.; Raad, 406 F.3d at 1324 & n.4. In view of this precedent and having
considered the record in this case, we cannot say that Replogle’s sentence was
“grossly disproportionate to the offense committed,” much less that the district
court committed plain error by imposing the sentence it did.3 Replogle’s Eighth
3
Replogle points to a number of factors in this case that might have supported a lesser
sentence, including his cooperation with investigators (for which he already received credit in the
7
Amendment challenge therefore fails.4
III.
Replogle argues that he received ineffective assistance of counsel at
sentencing. He also contends that the sentencing guidelines applicable to his
offense are unduly harsh, and thus, his within-guidelines sentence is substantively
unreasonable. As stated above, however, Replogle’s plea agreement contained a
sentence appeal waiver. Therefore we must first determine whether this waiver
forecloses a challenge to his sentence on these grounds.
The validity of a sentence appeal waiver is a question of law we review de
novo. United States v. Bushert, 997 F.2d 1343, 1352 (11th Cir. 1993). “A
sentence appeal waiver must be made knowingly and voluntarily.” United States
v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). We will enforce a sentence
appeal waiver “if the government shows either that: (1) the district court
specifically questioned the defendant about the waiver; or (2) the record makes
clear that the defendant otherwise understood the full significance of the waiver.”
form of a reduction for acceptance of responsibility), that he apparently ceased downloading or
trading child pornography, his military service and stable home life, and that he only marginally
exceeded the 300-image threshold, which led to an additional increase in his offense level. These
factors are properly addressed to the sentencing court’s discretion in crafting a reasonable
sentence. They do not, however, render his sentence a plain violation of the Eighth Amendment.
4
Because we conclude that Replogle has not made a threshold showing of
disproportionality, we need not consider the sentences imposed on others. Raad, 406 F.3d at
1324 n.4.
8
Id.; see also Bushert, 997 F.2d at 1351.
The language of the sentence appeal waiver in Replogle’s plea agreement is
clear and unambiguous. During the plea colloquy, the district court specifically
questioned Replogle about this provision. The district court explained that, with
the exception of the four circumstances set forth in the plea agreement, Replogle
would forever waive any right to appeal or collaterally attack his sentence.
Replogle confirmed his understanding of the sentence appeal waiver and stated
that he had specifically discussed it with his attorney. On this record, we conclude
that Replogle’s sentence appeal waiver is valid and enforceable. See Bushert, 997
F.2d at 1351.
In his plea agreement, Replogle waived his right to appeal or collaterally
attack his sentence except where his sentence (1) exceeds the guidelines range
calculated by the district court, (2) exceeds the statutory maximum, (3) violates the
Eighth Amendment, or (4) where the government exercises its right to appeal.
Replogle’s ineffective assistance claim and his challenge to the substantive
reasonableness of his sentence do not fall within any of these exceptions.
Replogle is therefore precluded from challenging his sentence on these grounds.
AFFIRMED.
9