United States v. Christopher Delgesso

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 25, 2019
• Docket: 18-10927
• Status: Unpublished

Opinion

Case: 18-10927 Date Filed: 04/25/2019 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-10927 Non-Argument Calendar ________________________

D.C. Docket No. 4:17-cr-00006-CDL-MSH-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee, versus CHRISTOPHER DELGESSO, Defendant-Appellant.

__________________________

Appeal from the United States District Court for the Middle District of Georgia __________________________

(April 25, 2019)

Before BRANCH, EDMONDSON, and JULIE CARNES, Circuit Judges.

PER CURIAM: Case: 18-10927 Date Filed: 04/25/2019 Page: 2 of 5

Christopher Delgesso appeals his sentence for one count of possession of

child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B), (b)(2). He argues

that the district court's 78-month sentence is substantively unreasonable because

(1) the court did not give proper weight to his mitigating circumstances and

(2) U.S.S.G. § 2G2.2 does not establish a reasonable guideline range based on the

sentencing factors under 18 U.S.C. § 3553(a).

We review the reasonableness of a sentence under the deferential

abuse-of-discretion standard. United States v. Foster, 878 F.3d 1297, 1304 (11th

Cir. 2018). The party who challenges the sentence bears the burden to show that

the sentence is unreasonable in the light of the record and the 18 U.S.C.

§ 3553(a) factors. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010).

The district court must impose a sentence sufficient, but not greater than

necessary to comply with the purposes listed in § 3553(a)(2), including the need to

reflect the seriousness of the offense, promote respect for the law, provide just

punishment for the offense, deter criminal conduct, and protect the public from the

defendant's future criminal conduct. United States. v. Irey, 612 F.3d 1160, 1196

(11th Cir. 2010) (en banc); 18 U.S.C. § 3553(a)(2). The court must also consider

the nature and circumstances of the offense and the history and characteristics of

the defendant. 18 U.S.C. § 3553(a)(1).

2 Case: 18-10927 Date Filed: 04/25/2019 Page: 3 of 5

The weight given to any specific § 3553(a) factor is committed to the sound

discretion of the district court. United States v. Langston, 590 F.3d 1226, 1237

(11th Cir. 2009). Due deference must be given to the district court's decision that

the § 3553(a) factors, as a whole, justify the extent of the variance. United States

v. Hayes, 762 F.3d 1300, 1307 (11th Cir. 2014). We will only remand for

resentencing when “left with the definite and firm conviction 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 dictated by the

facts of the case.” United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008).

Nevertheless, a court can abuse its discretion when it (1) fails to consider relevant

factors that were due significant weight, (2) gives an improper or irrelevant factor

significant weight, or (3) commits a clear error of judgment by balancing the

proper factors unreasonably. Irey, 612 F.3d at 1189.

In reviewing the reasonableness of a sentence outside the guideline range,

we may take the degree of variance into account and consider the extent of a

deviation from the guidelines. Gall v. United States, 552 U.S. 38, 47 (2007). A

major variance should be supported by a more significant justification than a minor

variance, and the justification must be sufficiently compelling to support the

degree of the variance. Id. at 50. There is no “rigid mathematical formula that

3 Case: 18-10927 Date Filed: 04/25/2019 Page: 4 of 5

uses the percentage of a departure as the standard for determining the strength of

the justifications required for a specific sentence.” Id. at 47.

A sentence imposed well below the statutory maximum penalty is an

indicator of a reasonable sentence. See United States v. Gonzalez, 550 F.3d 1319,

1324 (11th Cir. 2008) (holding that the sentence was reasonable in part because it

was well below the statutory maximum). Although the court need not presume

that a sentence within the guideline range is reasonable, we ordinarily expect a

sentence within the guideline range to be reasonable. United States v. Hunt, 526

F.3d 739, 746 (11th Cir. 2008).

Sentencing judges can rely on what they have learned from similar cases

over the years, and they are not required to confine their considerations to

empirical studies. United States v. Shaw, 560 F.3d 1230, 1238 (11th Cir. 2009).

Moreover, the district court has discretion to disagree with the Sentencing

Guidelines' policies, but is not required to do so. Dell v. United States, 710 F.3d

1267, 1279 (11th Cir. 2013) (explaining that a district court has discretion to vary

downward based upon its policy disagreement with, for example, the Sentencing

Guidelines' treatment of crack and powder cocaine, but is not required to do so.)

Here, the district court was within its discretion to impose a 78-month

sentence because it determined that a downward variance was not warranted in the

light of the quantity and content of the images and videos Delgesso obtained,

4 Case: 18-10927 Date Filed: 04/25/2019 Page: 5 of 5

which were relevant to the characteristics and seriousness of his offense. See 18

U.S.C. § 3553(a)(1), (2)(A); Langston, 590 F.3d at 1237. The district court did not

abuse its discretion by refusing to adopt Delgesso's policy arguments on perceived

defects in § 2G2.2. See Dell, 710 F.3d at 1279; Shaw, 560 F.3d at 1238.

Accordingly, we affirm.

AFFIRMED.