United States v. Franco Rivarola

572 F. App'x 812
CourtCourt of Appeals for the Eleventh Circuit
DecidedJuly 21, 2014
Docket13-15578
StatusUnpublished

This text of 572 F. App'x 812 (United States v. Franco Rivarola) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Franco Rivarola, 572 F. App'x 812 (11th Cir. 2014).

Opinion

PER CURIAM:

Franco Hernán Rivarola appeals his 97-month sentence, imposed after he pleaded guilty to possession of a visual depiction of a minor engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(4)(B). On appeal, Rivarola argues that the district court erred in imposing a two-level enhancement, pursuant to U.S.S.G. § 2G2.2(b)(3)(F), for distribution of child pornography. Rivarola also argues that his sentence was procedurally and substantively unreasonable.

Upon review of the record and consideration of the parties’ briefs, we affirm.

I.

Rivarola argues that the U.S.S.G. § 2G2.2(b)(3)(F) distribution enhancement requires evidence of a defendant’s knowledge of how a file sharing network operates or intent to share child pornography files, and that his use of such a network on *814 a default setting that enabled other users to access his child pornography files was insufficient to support the enhancement.

We review sentencing issues raised for the first time on appeal for plain error. United States v. Bonilla, 579 F.3d 1233, 1238 (11th Cir.2009). An error is plain if it is obvious and clear under current law. United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993).

Under the invited error doctrine, we will not review an error that a defendant induced or invited the district court into making. United States v. Brannan, 562 F.3d 1300, 1306 (11th Cir.2009). Further, we have often applied the doctrine when a party affirmatively stipulates to a course of action in the district court. See, e.g., United States v. Love, 449 F.3d 1154, 1157 (11th Cir.2006) (invited error when party expressly acknowledged that the court could impose supervised release); United States v. Thayer, 204 F.3d 1352, 1355 (11th Cir.2000) (invited error when party said it had no objection in response to question from court of whether certain evidence was admissible). The doctrine is generally based on the idea that a defendant should not benefit from assenting to a course of action in the district court as a strategic decision and complaining when that strategy fails. United States v. Jernigan, 341 F.3d 1273, 1290 (11th Cir.2003).

Distribution of child pornography is a specific offense characteristic triggering a two-level sentencing enhancement. U.S.S.G. § 2G2.2(b)(3)(F). The guideline application notes define distribution as:

any act, including possession with intent to distribute, production, transmission, advertisement, and transportation, related to the transfer of material involving the sexual exploitation of a minor. Accordingly, distribution includes posting material involving the sexual exploitation of a minor on a website for public viewing but does not include the mere solicitation of such material by a defendant.

U.S.S.G. § 2G2.2 cmt. 1. Neither we nor the Supreme Court have held that a defendant’s use of a file sharing network in default mode, where downloaded child pornography files are placed in a shared folder and accessed by others on the network, must categorically be accompanied by evidence of knowledge or intent in order to trigger this enhancement. In fact, one of our prior decisions suggests, albeit in dicta, that such default use might be sufficient. See United States v. Vadnais, 667 F.3d 1206, 1209-10 (11th Cir.2012) (stating, in dicta, that the record clearly supported the enhancement, where the defendant used a file sharing program in default mode and did not dispute that the enhancement applied); hut see United States v. Spriggs, 666 F.3d 1284, 1287 (11th Cir.2012) (suggesting, in dicta, that the enhancement requires a showing of knowledge, at least where there is no evidence that other users actually downloaded the defendant’s files).

Under the invited error doctrine, we are precluded from considering Rivarola’s argument because he affirmatively stipulated to the sentencing enhancement of which he now complains. Love, 449 F.3d at 1157. Rivarola objected to the original presen-tence investigation report’s (“PSI”) five-level distribution enhancement (U.S.S.G. § 2G2.2(b)(3)(B)) for distribution for the receipt, or expectation of receipt, of a thing of value, which the revised PSI replaced with the two-level distribution enhancement (U.S.S.G. § 2G2.2(b)(3)(F)). Then, at the sentencing hearing, Rivarola stated that no objections survived the revised PSI and that the parties agreed the two-level enhancement should apply. Moreover, Rivarola attempted to use the enhancement’s application strategically in *815 arguing for a downward variance on the basis that this and other enhancements were applicable in most child pornography cases and thus the guideline range overstated his culpability. Jemigan, 341 F.3d at 1290.

Even if we were to consider Riva-rola’s argument, it would fail under plain error review, because it is not obvious and clear under current law that the two-level distribution enhancement must be supported by a showing of a defendant’s knowledge or intent.

II.

We review the reasonableness of a sentence under a deferential abuse-of-discretion standard of review. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007).

We first ensure that the sentence is procedurally unreasonable, determining whether the district court erred in calculating the guideline range, treated the Sentencing Guidelines as mandatory, failed to consider the 18 U.S.C. § 3553(a) factors, selected a sentence based on clearly erroneous facts, or failed to adequately explain the sentence. Id. The district court is generally not required to explicitly discuss each of the § 3553(a) factors — its consideration of the defendant’s arguments at sentencing and statement that it took the factors into account is sufficient. United States v. Sanchez, 586 F.3d 918, 936 (11th Cir.2009). Further, the district court’s failure to explicitly discuss mitigating evidence presented by the defendant does not render a sentence unreasonable where it indicates it considered all the § 3553(a) factors. United States v. Amedeo, 487 F.3d 823

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Related

United States v. Thayer
204 F.3d 1352 (Eleventh Circuit, 2000)
United States v. Jernigan
341 F.3d 1273 (Eleventh Circuit, 2003)
United States v. Christopher Love
449 F.3d 1154 (Eleventh Circuit, 2006)
United States v. John Windell Clay
483 F.3d 739 (Eleventh Circuit, 2007)
United States v. Damon Amedeo
487 F.3d 823 (Eleventh Circuit, 2007)
United States v. Hunt
526 F.3d 739 (Eleventh Circuit, 2008)
United States v. Brannan
562 F.3d 1300 (Eleventh Circuit, 2009)
United States v. Bonilla
579 F.3d 1233 (Eleventh Circuit, 2009)
United States v. Sanchez
586 F.3d 918 (Eleventh Circuit, 2009)
United States v. Olano
507 U.S. 725 (Supreme Court, 1993)
Gall v. United States
552 U.S. 38 (Supreme Court, 2007)
United States v. Irey
612 F.3d 1160 (Eleventh Circuit, 2010)
United States v. Spriggs
666 F.3d 1284 (Eleventh Circuit, 2012)
United States v. Vadnais
667 F.3d 1206 (Eleventh Circuit, 2012)

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Bluebook (online)
572 F. App'x 812, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-franco-rivarola-ca11-2014.