United States v. Joseph Charles Desorbo, Jr.

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 10, 2019
• Docket: 18-11663
• Status: Unpublished

Opinion

Case: 18-11663 Date Filed: 05/10/2019 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-11663 Non-Argument Calendar ________________________

D.C. Docket No. 6:17-cr-00252-CEM-TBS-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSEPH CHARLES DESORBO, JR.,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(May 10, 2019)

Before BRANCH, EDMONDSON, and JULIE CARNES, Circuit Judges. Case: 18-11663 Date Filed: 05/10/2019 Page: 2 of 6

PER CURIAM:

Joseph Desorbo, Jr., appeals his above-guidelines 204-month sentence for

possession of child pornography, arguing that the district court incorrectly applied

the five-level sentencing guidelines enhancement for a pattern of activity involving

the sexual abuse or exploitation of a minor and abused its discretion in varying

upward from his guideline range.

I.

We review a district court’s findings of fact supporting a sentencing

enhancement for clear error and review whether a particular guideline

enhancement applies to a given set of facts de novo. United States v. Alberts, 859

F.3d 979, 982 (11th Cir. 2017). In reviewing the district court’s findings of fact,

this Court gives substantial deference to the district court’s credibility

determinations at sentencing. United States v. Plasencia, 886 F.3d 1336, 1343

(11th Cir. 2018), cert. denied, 139 S. Ct. 837 (2019). Arguments raised for the

first time in a reply brief are abandoned. United States v. Moran, 778 F.3d 942,

985 (11th Cir. 2015).

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The Sentencing Guidelines impose a five-level enhancement to defendants

“engaged in a pattern of activity involving the sexual abuse or exploitation of a

minor.” U.S.S.G. § 2G2.2(b)(5). The government bears the burden of establishing

the facts necessary to support a sentencing enhancement by a preponderance of the

evidence. Alberts, 859 F.3d at 982. The guidelines define a “pattern of activity

involving the sexual abuse or exploitation of a minor” as any two or more separate

incidents of sexual abuse or exploitation of a minor regardless of whether the

incident occurred during the course of the offense, involved the same minor, or

resulted in a conviction. U.S.S.G. § 2G2.2, comment. (n.1). The guidelines further

define “sexual abuse or exploitation” as conduct described in specified federal

statutes, state offenses involving equivalent conduct, or an attempt or conspiracy to

commit the specified offenses. Id. Among the specified statutes is 18 U.S.C.

§ 2243(a), which applies to anyone who knowingly engages in, or attempts to

engage in, a sexual act with someone between the age of 12 and 16 years old or

with anyone at least 4 years younger. Id.; 18 U.S.C. § 2243(a). The guidelines

explicitly exclude possession of materials relating to the sexual abuse or

exploitation of a minor from this definition. U.S.S.G. § 2G2.2, comment. (n.1).

Here, the district court properly applied the enhancement for a pattern of

activity involving the sexual abuse or exploitation of a minor: the court’s factual

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findings that Desorbo had attempted to engage two minors for sex in 1998 and

2017 were not clearly erroneous findings.

II.

We review the substantive reasonableness of a sentence under the deferential

abuse-of-discretion standard of review. Gall v. United States, 552 U.S. 38, 41

(2007). The party who challenges the sentence bears the burden of showing that

the sentence was unreasonable considering the record and the § 3553(a) factors.

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

We must first confirm that the district court did not commit a significant

procedural error, such as an improper guideline range calculation. Gall, 552 U.S.

at 51. If the sentence was procedurally reasonable, this Court must next determine

whether the sentence was substantively reasonable based on the totality of the

circumstances. Id. The district court must impose “a sentence sufficient, but not

greater than necessary, to comply with the purposes” listed in 18 U.S.C.

§ 3553(a)(2), including the need to reflect the seriousness of the crime, promote

respect for the law, provide just punishment, deter criminal conduct, and protect

the public from the defendant’s future criminal conduct. 18 U.S.C. § 3553(a),

(a)(2)(A)-(C); see also United States v. Irey, 612 F.3d 1160, 1196 (11th Cir. 2010)

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(en banc). 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). In considering these factors, the district court does not have to

discuss each one individually but must acknowledge its consideration of the

defendant’s arguments and the § 3553(a) factors as a whole. United States v.

Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).

We do not presume that a sentence outside the guideline range is

unreasonable, but we must consider the extent of any variance and “give due

deference to the district court’s decision that the § 3553 factors, on a whole, justify

the extent of the variance.” United States v. Turner, 626 F.3d 566, 573-74 (11th

Cir. 2010). When the district court decides after “serious consideration” that a

variance is appropriate based on the § 3553(a) factors, it should explain that

variance “with sufficient justifications.” Gall, 552 U.S. at 46-47. The court’s

justification must be “compelling enough to support the degree of the variance and

complete enough to allow meaningful appellate review,” but an “extraordinary

justification” is not required for a sentence outside the guideline range. United

States v. Shaw, 560 F.3d 1230, 1238 (11th Cir. 2009) (quotation omitted). The

district court may support its upward variance based on the same factors it

considered in imposing an enhancement. United States v. Rodriguez, 628 F.3d

1258, 1264 (11th Cir. 2010). A sentence well below the statutory maximum

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“points strongly to reasonableness.” United States v. Nagel, 835 F.3d 1371, 1377

(11th Cir. 2016).

We will only remand for resentencing when “we are 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). The weight to be given each § 3553(a)

factor is within the district court’s sound discretion. United States v. Kuhlman, 711

F.3d 1321, 1327 (11th Cir. 2013). Nevertheless, a district court can abuse its

discretion when it (1) fails to consider 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 by balancing the proper factors

unreasonably. Id. at 1326-27 (quoting Irey, 612 F.3d at 1189).

Here, the district court did not abuse its discretion in varying upward from

Desorbo’s guideline range. The court weighed Desorbo’s possession of many

sadistic videos and images of young children and his attempted sexual encounters

with two minors against his family’s and friends’ support and his acceptance of

responsibility. The court could reasonably conclude that Desorbo presented a

significant danger to society that warranted a 36-month upward variance.

AFFIRMED.