United States v. Cruz Vicente, Jr.

638 F. App'x 958
Court of Appeals for the Eleventh Circuit·Decided February 2, 2016·No. 15-10671·Unpublished

Opinions

[959] PER CURIAM:

Cruz Vicente, Jr. appeals his 151-month sentence, imposed at the low end of his guideline range, for one count of receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(B) and (b)(1). On appeal, Vicente argues that: (1) the district court erred in applying U.S.S.G. § 2G2.2(b) sentencing enhancements in light of a Sentencing Commission report suggesting that the enhancements failed to differentiate between child pornography offenders based on their relative culpability; and (2) his sentence is substantively unreasonable. After careful review, we affirm.

We generally review arguments regarding guideline calculations de novo. United States v. Moran, 778 F.3d 942, 959 (11th Cir.), cert. denied sub nom. Huarte v. United States, — U.S. -, 136 S.Ct. 268, 193 L.Ed.2d 196 (2015). However, when those arguments were not raised before the district court, we review for plain error. United States v. Aguilar-Ibarra, 740 F.3d 587, 591-92 (11th Cir.2014). We review the sentence a district court imposes for “reasonableness,” which “merely asks whether the trial court abused its discretion.” United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir.2008) (quoting Rita v. United States, 551 U.S. 338, 351, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)). Under the prior precedent rule, we are bound to follow prior binding precedent unless and until either this Court en banc or the Supreme Court overrules it. United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir.2008).

First, we are unpersuaded by Vicente’s argument that the district court erred in applying U.S.S.G. § 2G2.2(b) sentencing enhancements. Section 2G2.2 of the Sentencing Guidelines provides the guideline calculations for trafficking in material involving the sexual exploitation of a minor. U.S.S.G. § 2G2.2. Subsection (b) provides special offense characteristics, including a 4-level enhancement for material that portrays violence, a 2-level enhancement use of a computer, and a 5-level enhancement for involvement of 600 or more images. Id. § 2G2.2(b)(4), (6), & (7)(D). The commentary to § 2G2.2(b)(4) provides that the defendant need not have intended to possess, access, receive, or distribute violent images in order to receive the enhancement. Id. § 2G2.2 comment, (n.2).

In United States v. Cubero, we addressed the Sentencing Commission’s report and noted that it did not affect the validity of § 2G2.2 in non-production child pornography cases—that is, cases involving the receipt, possession, or distribution, as opposed to the production, of child pornography. 754 F.3d 888, 900 (11th Cir.), cert. denied, — U.S. -, 135 S.Ct. 764, 190 L.Ed.2d 636 (2014). We denied the defendant’s request for a remand to the district court to consider the Sentencing Commission’s report because the report had not altered the district court’s duties with regard to the § 3553(a) factors and did hot require the court to vary from a guideline range calculated using § 2G2.2 enhancements. Id. We noted that, while the district court may properly consider the Sentencing Commission’s report to determine a sentence, its application of the § 2G2.2 enhancements in non-production cases does not constitute procedural unreasonableness. Id.

To show plain error, a defendant must show (1) an error, (2) that is plain, and (3) that affected his substantial rights. United States v. Turner, 474 F.3d 1265, 1276 (11th Cir.2007). If the defendant satisfies the three conditions, we may exercise our discretion to recognize the error if it “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. For an error to be plain, it must be contrary to an explicit statutory provision [960] or on point precedent from this Court or the Supreme Court. United States v. Hoffman, 710 F.3d 1228, 1232 (11th Cir.2013). To avoid plain error review, a defendant must raise an objection before the district court in language so clear and simple that the court cannot misunderstand it. United States v. Massey, 443 F.3d 814, 819 (11th Cir.2006). A party may not avoid plain error review by raising the factual predicate for an objection under a different legal theory. Id.

Here, because Vicente did not object to the guidelines calculation below or raise the same legal theory that he advances on appeal, we review only for plain error. But even if Vicente’s arguments at sentencing were sufficient to avoid plain error review, the district court did not err, much less plainly err, in applying the § 2G2.2(b) enhancements when calculating Vicente’s guideline range. As we expressly held in Cubero, the Sentencing Commission’s report did not render sentences in which the district court applied § 2G2.2(b) enhancements in non-production cases procedurally unreasonable. Our decision in Cubero thus forecloses Guyton’s argument under the prior precedent rule. See Vega-Castillo, 540 F.3d at 1236. Moreover, Vicente points to no binding precedent for his assertion that the § 2G2.2(b) enhancements require that he intentionally downloaded a certain type or volume of images. As a result, he has not shown that the district court erred, or plainly erred, in applying the § 2G2.2(b) enhancements.

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United States v. Cruz Vicente, Jr., 638 F. App'x 958 (11th Cir. 2016).

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