Case: 19-12219 Date Filed: 05/12/2020 Page: 1 of 14
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-12219
Non-Argument Calendar
________________________
D.C. Docket No. 3:18-cr-00470-ECM-WC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT HARRY BOLSER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(May 12, 2020)
Before ROSENBAUM, JILL PRYOR and BRANCH, Circuit Judges.
PER CURIAM:
Case: 19-12219 Date Filed: 05/12/2020 Page: 2 of 14
Robert Bolser appeals the procedural and substantive reasonableness of his
151-month total sentence, imposed after he pled guilty to receipt and possession of
child pornography. After careful review, we conclude that Bolser failed to show
that the district court abused its discretion or otherwise erred at sentencing. We
therefore affirm.
I. BACKGROUND
A. Factual Background1
Investigators with the Georgia Internet Crimes Against Children Task Force
and the Department of Homeland Security Investigations discovered an internet
protocol (“IP”) address that was sharing child pornography on a peer-to-peer
network. The investigators established a direct connection with the IP address,
downloaded multiple child pornography files, and discovered that the IP address
possessed or shared 313 child pornography files. The IP address was registered to
a house in Phenix City, Alabama.
Federal officers executed a search warrant at the address and met Bolser,
who resided at the house with his wife, stepson, and in-laws. Bolser told the
officers that he had built his own computer and used a peer-to-peer file sharing
program to anonymously share and download child pornography. He also told
officers that he viewed child pornography once a month, over the course of five
1
The facts come from the unobjected-to facts in the presentence investigation report.
2
Case: 19-12219 Date Filed: 05/12/2020 Page: 3 of 14
years prior to the search; had a special interest in penetration of girls ages 7 to 12;
and masturbated while watching the videos. Agents seized a laptop, cell phone,
and five external hard drives that contained images and videos of child
pornography. A forensic review of Bolser’s electronics revealed 1,013 images and
168 videos of child pornography. Of the images, 167 were tagged as infant or
toddler age and 9 were tagged as sadistic or masochistic. Of the videos, 24 were
tagged as infant age and 3 were tagged as sadistic or masochistic.
B. Procedural Background
A grand jury returned a two-count indictment charging Bolser with:
(1) receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2) (Count
1); and (2) and possession of child pornography, in violation of § 2252A(a)(5)(B)
(Count 2). Bolser pled guilty to both counts without the benefit of a written plea
agreement.
The probation office prepared a presentence investigation report (“PSR”).
The PSR determined that Bolser’s base offense level was 22 under the United
States Sentencing Guidelines, U.S.S.G. § 2G2.2(a)(2). The PSR applied numerous
enhancements, including: (1) a two-level increase because the pornography
involved a prepubescent minor or a minor who had not attained the age of 12
years; (2) a two-level increase because Bolser used a peer-to-peer program to
distribute child pornography; (3) a four-level increase because the offense involved
3
Case: 19-12219 Date Filed: 05/12/2020 Page: 4 of 14
material that portrayed sadistic or masochistic conduct; (4) a two-level increase
because Bolser used a computer; and (5) a five-level increase because the offense
involved at least 600 images. After applying a three-level reduction for acceptance
of responsibility, the PSR calculated that Bolser’s total offense level was 34.
Based on a total offense level of 34 and criminal history category of I, the PSR
concluded that Bolser’s guidelines range was 151 to 188 months’ imprisonment.
Neither party objected to the PSR.
The PSR described Bolser’s background, including childhood abuse by his
father and his mother’s mental illness. Bolser’s father was verbally and physically
abusive and would kick Bolser and force him to stand on his head when he got in
trouble. Once his father kicked him around the kitchen wearing cowboy boots.
Bolser’s mother was hospitalized for suicide attempts, and on one occasion Bolser
intervened when she tried to cut herself with a knife. Bolser dropped out of high
school to care for his mother. At the time of his arrest, Bolser had worked as a
manager at Wal-Mart for over ten years. Bolser reported that his relationship with
his father had improved as he got older.
Before sentencing, the government submitted five victim impact statements.
In the statements, the victims detailed their sexual abuse and the continuing trauma
of knowing that the pornographic materials portraying them are still circulating.
4
Case: 19-12219 Date Filed: 05/12/2020 Page: 5 of 14
Also before sentencing, Bolser submitted the following evidence:
(1) declarations from his siblings and mother that confirmed his childhood abuse;
(2) a psychological evaluation by Dr. Robert Shaffer, who opined that Bolser met
the criteria for autism and post-traumatic stress disorder (“PTSD”); and (3) reports
by the United States Sentencing Commission stating that the statutory scheme and
guidelines provision, U.S.S.G. § 2G2.2, for possession and receipt of child
pornography were outmoded because they “fail[ed] to differentiate among
offenders in terms of their culpability.” Doc. 39-4 at 9. 2
At the sentencing hearing, the district court adopted the factual statements
and sentencing calculations in the PSR and determined that Bolser’s guidelines
range was 151 to 188 months in prison, without objection. Then, Bolser called Dr.
Shaffer, who testified that Bolser’s autism and PTSD contributed to his decision to
view child pornography. Dr. Shaffer explained that Bolser’s mental conditions
prevented him from “understand[ing] the subtle aspects of his behavior and its
impact on others,” but he nevertheless was “capable of fully understanding the
wrongfulness of the behavior that he witnessed on the computer screen.” Doc. 61
at 20.
The district court confirmed that it had reviewed the PSR, victim impact
statements, and Bolser’s submissions. The court further confirmed that it had
2
“Doc. #” refers to the numbered entry on the district court’s docket.
5
Case: 19-12219 Date Filed: 05/12/2020 Page: 6 of 14
considered the Sentencing Commission’s reports and was “obligat[ed] to make an
individualized determination [in Bolser’s case] because every defendant is
different.” Id. at 60–61. The court identified on the one hand several mitigating
factors, such as Bolser’s childhood abuse, his lack of criminal history, his stable
employment, and his role as a caregiver to his mother. On the other hand, the court
determined, there were numerous aggravating factors, such as Bolser’s:
(1) sophistication in building his own computer; (2) use of directed search terms to
find child pornography (as opposed to “inadvertently receiv[ing] child
pornography”); (3) particular interest in viewing the penetration of girls ages 7 to
12; (4) admission to masturbating while viewing the materials; (5) use of a
peer-to-peer network so that he could view child pornography anonymously, which
indicated his “awareness of the wrong of the conduct”; (6) awareness that the
videos “involve[ed] significant wrongdoing and damage to the victims”; and
(7) possession of a large number of images and videos with known victims. Id. at
62, 64. The court also emphasized that the victims were aware that the child
pornography materials were “being viewed continuously.” Id. at 64. In
considering the mitigating and aggravating factors, the court explained that “[a]ll
of those factors are specific to Mr. Bolser. It is not specific to other cases that are
viewed by other judges in other courts.” Id. at 63. The court noted that it had
6
Case: 19-12219 Date Filed: 05/12/2020 Page: 7 of 14
“given Mr. Bolser a very individualized look at what [it thought was] appropriate
in his case.” Id.
The court then sentenced Bolser to a total sentence of 151 months in prison.
The court explained that it had considered the 18 U.S.C. § 3553(a) factors in
fashioning the total sentence. Specifically, the court considered the seriousness of
Bolser’s offenses and the harm to the victims. Noting that Bolser had overcome
his childhood abuse, the court stated that “[t]he victims in this case, the victims
whose images continue to be trafficked by you and people like you, are not as
lucky.” Id. at 67. The court explained:
There’s no one that revels in the abuse that you have
suffered . . . . But not only is the abuse that’s suffered by the child
pornography victims documented, it is actually celebrated by people
who review their videos and continue to share them with other people
and who actually find comfort in watching those videos for them.
That results in continuing trauma to those people.
Id. at 67–68. Finally, the court noted Bolser’s “substantial mental deficiency,” but
concluded that the mitigating impact of his mental illnesses was “diminished
significantly” because he had maintained a steady job and knew how to build a
computer and use peer-to-peer software. Id. at 79–80.
Bolser objected to the procedural and substantive reasonableness of the total
sentence, without success. This is Bolser’s appeal.
7
Case: 19-12219 Date Filed: 05/12/2020 Page: 8 of 14
II. STANDARD OF REVIEW
We review the reasonableness of a sentence under a deferential abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 41 (2007); see also United
States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (“A district court
abuses its discretion when it (1) fails to afford consideration to relevant factors that
were due significant weight, (2) gives significant weight to an improper or
irrelevant factor, or (3) commits a clear error of judgment in considering the proper
factors.” (internal quotation marks omitted)). The party challenging the sentence
bears the burden of showing it is unreasonable. United States v. Tome, 611 F.3d.
1371, 1378 (11th Cir. 2010). Additionally, we review the district court’s factual
findings for clear error. United States v. Barrington, 648 F.3d 1178, 1195 (11th
Cir. 2011). “A factual finding is clearly erroneous when although there is evidence
to support it, the reviewing court on the entire evidence is left with the definite and
firm conviction that a mistake has been committed.” Id. (internal quotation marks
omitted).
III. DISCUSSION
On appeal, Bolser argues that his sentence is procedurally and substantively
unreasonable. We address these points in turn.
8
Case: 19-12219 Date Filed: 05/12/2020 Page: 9 of 14
A. Procedural Reasonableness
In reviewing the reasonableness of a sentence, we first consider whether the
district court committed any significant procedural error. Gall, 552 U.S. at 51. A
sentence is procedurally unreasonable if the district court commits an error “such
as failing to calculate (or improperly calculating) the Guidelines range, . . . failing
to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous
facts, or failing to adequately explain the chosen sentence . . . .” Id. 3 In selecting a
sentence, the court is required to make “an individualized assessment based on the
facts presented.” Id. at 50.
Bolser first argues that the district court erred by finding that the abuse of
child pornography victims is “celebrated” and a source of “comfort” for people
who view child pornography. Doc. 61 at 67–68. Specifically, Bolser argues that
the court improperly relied on that finding as an aggravating factor, even though no
evidence in the record showed that he celebrated or took comfort in the abuse of
3
Under § 3553(a), the district court is required to impose a sentence “sufficient, but not
greater than necessary, to comply with the purposes” of the statute. 18 U.S.C. § 3553(a). These
purposes include the need to: reflect the seriousness of the offense; promote respect for the law;
provide just punishment; deter criminal conduct; protect the public from the defendant’s future
criminal conduct; and effectively provide the defendant with educational or vocational training,
medical care, or other correctional treatment. 18 U.S.C. § 3553(a)(2). The court must also
consider the nature and circumstances of the offense, the history and characteristics of the
defendant, the kinds of sentences available, the applicable guidelines range, the pertinent policy
statements of the Sentencing Commission, the need to avoid unwarranted sentencing disparities,
and the need to provide restitution to victims. Id. § 3553(a)(1), (3)–(7).
9
Case: 19-12219 Date Filed: 05/12/2020 Page: 10 of 14
victims. We reject this argument because Bolser mischaracterizes the court’s
statement. The court did not find that Bolser himself celebrated and took comfort
in the abuse; rather, the court noted the seriousness of child pornography offenses
and the continuing impact on the victims. In light of the victim impact statements,
which confirmed that the victims felt continuing trauma from their abuse, we are
not “left with the definite and firm conviction” that the court’s observation was
mistaken. See Barrington, 648 F.3d at 1195.
Next, Bolser argues that the court clearly erred in fashioning his sentence by
relying on the fact that the victims were aware that the child pornography material
was still circulating, as that fact was not “unique” to his case. Appellant’s Br. at
31–32. This argument lacks merit. For starters, it is belied by the record. The
court did not find that the victims’ knowledge was “unique” to his case. Rather,
the court noted that it had considered the “specific” victim impact statements, in
which the victims indicated that they were aware that their images were “being
viewed continuously.” Doc. 61 at 63, 64. The court was permitted to rely on the
victim impact statements in sentencing Bolser. See United States v. Smith, 480
F.3d 1277, 1281 (11th Cir. 2007) (determining that the district court’s factual
findings during sentencing may be based on, among other things, evidence
presented during the sentencing hearing).
10
Case: 19-12219 Date Filed: 05/12/2020 Page: 11 of 14
Finally, Bolser argues that the court committed procedural error by failing to
make an individualized sentencing determination. Specifically, Bolser argues that
the aggravating factors identified by the court—including that he built his own
computer, used peer-to-peer software to anonymously download and share videos
and images, used specific search terms, possessed sadomasochistic images, and
viewed pornography with identified victims—were common to most child
pornography offenders. Bolser asserts that, in identifying the aggravating factors,
the court ignored the Sentencing Commission reports highlighting problems with
U.S.S.G. § 2G2.2.
The district court did not abuse its discretion by relying on the challenged
aggravating factors. A review of the record confirms that the court made an
individualized sentencing determination. See Gall, 552 U.S. at 50. Specifically,
the court considered the evidence presented at sentencing and contained in the PSR
to determine that Bolser: (1) had a particular interest in viewing the penetration of
girls ages 7 to 12; (2) masturbated while watching videos; (3) used peer-to-peer
software to view the child pornography anonymously; and (4) possessed sadistic or
masochistic pictures and videos. Importantly, Bolser did not object to these facts,
which were contained in the PSR. Moreover, the court specifically acknowledged
its obligation to “make an individualized determination” and confirmed that it had
done so in sentencing Bolser. Doc. 61 at 60–61, 63. Thus, we easily conclude that
11
Case: 19-12219 Date Filed: 05/12/2020 Page: 12 of 14
the court made an individualized sentencing determination. Further, we reject
Bolser’s argument that the court ignored the Sentencing Commission reports, as
the record shows that the court reviewed the reports but concluded that they did not
invalidate § 2G2.2. We have held as much. See United States v. Cubero, 754 F.3d
888, 900 (11th Cir. 2014) (holding that the Sentencing Commission’s reports on
§ 2G2.2 did not invalidate that section or render the defendant’s sentence
procedurally unreasonable). We therefore conclude that the court imposed no
procedurally unreasonable sentence.
B. Substantive Reasonableness
Bolser next challenges the substantive reasonableness of his total sentence.
When reviewing a sentence for substantive reasonableness, we examine the totality
of the circumstances, including “whether the statutory factors in § 3553(a) support
the sentence in question.” United States v. Gonzalez, 550 F.3d 1319, 1324 (11th
Cir. 2008). “We will not second guess the weight (or lack thereof) that the judge
accorded to a given factor under § 3553(a), as long as the sentence ultimately
imposed is reasonable in light of all the circumstances presented.” United States v.
Snipes, 611 F.3d 855, 872 (11th Cir. 2010) (alterations adopted) (internal quotation
marks omitted). We may vacate a sentence only if we firmly believe that the
district court “committed a clear error of judgment in weighing the § 3553(a)
factors by arriving at a sentence that lies outside the range of reasonable sentences
12
Case: 19-12219 Date Filed: 05/12/2020 Page: 13 of 14
dictated by the facts of the case.” Irey, 612 F.3d at 1190 (internal quotation marks
omitted).
Bolser argues that the district court improperly weighed the § 3553(a)
factors. Specifically, he asserts that the court: (1) improperly relied on the fact
that he used targeted search terms and did not “inadvertently” receive child
pornography; (2) failed to give adequate weight to his childhood abuse; and
(3) improperly determined that his mental health issues were rebutted by his ability
to maintain a job and understand computers. Doc. 61 at 62.
Considering the totality of the circumstances, we are not convinced that the
court imposed a substantively unreasonable total sentence. See Gonzalez, 550 F.3d
at 1324. We first note that Bolser’s 151-month total sentence was at the low end of
the guidelines range and well below the statutory maximum of 20 years’
imprisonment. See 18 U.S.C. § 2252A(b)(1)–(2) (providing a 20-year statutory
maximum for receipt and possession of child pornography). Although we do not
presume that a sentence below the statutory maximum and within the guidelines
range is reasonable, we ordinarily expect it to be. See United States v. Stanley, 739
F.3d 633, 656 (11th Cir. 2014) (recognizing that sentences within the guidelines
range ordinarily are reasonable, and a sentence imposed “well below” the statutory
maximum is “an indicator of a reasonable sentence”).
13
Case: 19-12219 Date Filed: 05/12/2020 Page: 14 of 14
Additionally, the court did not abuse its broad discretion in weighing the
statutory factors. See Snipes, 611 F.3d at 872. First, Bolser’s use of targeted
search terms to find child pornography was relevant to the seriousness of his
offenses, which the court was required to consider under § 3553(a)(2)(A). Further,
the record shows that the court considered Bolser’s childhood abuse as a mitigating
factor but afforded it less weight because he had overcome his abuse and his
crimes involved numerous child victims who were “not as lucky,” as they suffered
from continuing trauma. Doc. 61 at 67. Similarly, the court considered the
evidence of Bolser’s mental illnesses, but, again, afforded less weight to that
mitigation evidence because Bolser understood the wrongfulness of viewing child
pornography and could maintain a steady job. Again, the court was permitted to
consider the harm to the victims and Bolser’s culpability, both of which are
relevant to the seriousness of his crimes. See 18 U.S.C. § 3353(a)(2)(A). On this
record, we cannot conclude that the court committed a clear error of judgment in
weighing the § 3553(a) factors. See Irey, 612 F.3d at 1190.
IV. CONCLUSION
For these reasons, we affirm Bolser’s total sentence.
AFFIRMED.
14