USCA11 Case: 22-13884 Document: 25-1 Date Filed: 11/30/2023 Page: 1 of 8
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 22-13884 Non-Argument Calendar ____________________
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus KURT BATUCAN SHELDON,
Defendant-Appellant.
Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 3:20-cr-00118-TJC-MCR-1 ____________________ USCA11 Case: 22-13884 Document: 25-1 Date Filed: 11/30/2023 Page: 2 of 8
2 Opinion of the Court 22-13884
Before ROSENBAUM, JILL PRYOR, and TJOFLAT, Circuit Judges. PER CURIAM: Kurt Batucan Sheldon appeals his 262-month sentence, which represents a downward variance from the 840-month guide- lines sentence, for producing and distributing child pornography. Sheldon contends that the District Court erred in two ways: first, by imposing an unreasonable sentence, and second, by violating the Eighth Amendment’s prohibition against cruel and unusual punishment. But Sheldon’s procedural reasonableness argument is fore- closed by our established precedent and his substantive reasonable- ness claim lacks merit because the District Court duly considered the 18 U.S.C. § 3553(a) sentencing factors. As for his Eighth Amendment argument, it fails because Sheldon cites no binding precedent establishing that a sentence below the guidelines violates the Eighth Amendment. Consequently, we affirm. I. Background In late May 2020, a Clay County Sheriff’s Office (CCSO) Deputy learned that a 12-year-old minor victim (MV) had ex- changed sexually explicit messages, pictures, and videos with an adult male. This interaction began when MV posted on social me- dia seeking friends and an individual with the username “K t” re- sponded. MV told “K t” that she was fifteen and “K t” told her that he was twenty-five to twenty-nine years old. The conversation be- came sexual when they began messaging on Snapchat. During USCA11 Case: 22-13884 Document: 25-1 Date Filed: 11/30/2023 Page: 3 of 8
22-13884 Opinion of the Court 3
their interactions, “K t” persuaded MV to send over fifty explicit pictures and videos. Federal law enforcement tracked the IP address connected to the Snapchat account and found it was assigned to Sheldon’s ad- dress in Interlachen, Florida. Law enforcement searched Sheldon’s bedroom and found a thumb drive with multiple videos and images of child pornography. In an interview, Sheldon estimated that he asked at least ten girls he knew to be underage to send him sexually explicit images, including MV. Sheldon also admitted that he had been viewing child pornography for several years, was sexually attracted to chil- dren, and masturbated while viewing child pornography. At least 1,070 images and 210 videos of child pornography were discovered on Sheldon’s electronic devices. In 2022, Sheldon pleaded guilty to one count of producing child pornography and two counts of distribution. At sentencing, neither party objected to the presentence investigation report, which gave Sheldon a total offense level of forty-three and a crimi- nal history category I. The guidelines were capped at the statutory maximum of 840 months’ imprisonment. The Government recommended a sentencing range of 292 to 365 months, underscoring Sheldon’s progression from viewing to producing child pornography and using social media to groom minors. Sheldon sought a downward variance to the fifteen-year mandatory minimum. He argued that this was his first criminal offense, that the sentencing guidelines should carry minimal USCA11 Case: 22-13884 Document: 25-1 Date Filed: 11/30/2023 Page: 4 of 8
4 Opinion of the Court 22-13884
weight because they were “skewed,” that the Government’s recom- mendation amounted to a life sentence, and emphasized his ac- ceptance of the nature and circumstances of the offense. The District Court acknowledged the gravity of the case, de- scribing it as “child pornography of the worst order.” While rec- ognizing that mere gratification from viewing such material is con- cerning, the District Court emphasized that Sheldon took it further by grooming MV, escalating from innocent conversations to ex- plicit sexual acts. The District Court found that Sheldon’s history and characteristics, including his major depressive disorder, were not “completely remarkable” and that many with such a disorder don’t engage in child pornography. The District Court acknowl- edged Sheldon’s forthrightness with law enforcement and genuine remorse. Still, it stressed the need for a sentence that reflected the seriousness of the offense and provided accountability. The Dis- trict Court expressed uncertainty about Sheldon’s low risk of recid- ivism and underscored the importance of public protection in de- termining the sentence. The District Court agreed that the sen- tencing guidelines were “not very helpful” here. However, it disa- greed that the Government’s recommended sentence was “a life sentence.” Ultimately, the District Court sentenced Sheldon to 262 months’ imprisonment followed by a life term of supervised re- lease. Sheldon objected to the reasonableness of his sentence and now appeals. USCA11 Case: 22-13884 Document: 25-1 Date Filed: 11/30/2023 Page: 5 of 8
22-13884 Opinion of the Court 5
II. Discussion A. Reasonableness Sheldon argues that his sentence is procedurally unreasona- ble. He says U.S. Sent’g Guidelines Manual (U.S.S.G.) § 2G2.2 (U.S. Sent’g Comm’n 2021)—used to calculate his offense level—concen- trates all offenders at or near the statutory maximum, which con- travenes § 3553’s requirements. He argues we should invalidate U.S.S.G. § 2G2.2, citing a 2012 Sentencing Commission report re- garding the sentencing disparities among nonproduction child por- nography defendants. He concedes we rejected this argument in United States v. Cubero, 754 F.3d 888 (11th Cir. 2014), but asks us to reexamine it. We review the reasonableness of a sentence for an abuse of discretion. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). Reviewing reasonableness is a two-part process that requires us to ensure that the District Court did not commit a significant procedural error and that the sentence is substantively reasonable under the totality of the circumstances. Id. The party challenging the sentence bears the burden of showing unreasonableness. Id. We will hold that a significant procedural error has been made if a district court calculates the guidelines incorrectly, disre- gards the § 3553(a) factors, bases the sentence on clearly erroneous facts, neglects to explain the sentence, or treats the guidelines as mandatory rather than advisory. Gall v. United States, 552 U.S. 38, 51 (2007). Or if it treats the guidelines as presumptively reasonable. United States v. Hill, 643 F.3d 807, 880 (11th Cir. 2011). USCA11 Case: 22-13884 Document: 25-1 Date Filed: 11/30/2023 Page: 6 of 8
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In Cubero, this Court addressed child pornography cases spe- cifically when it discussed a Sentencing Commission report on the deficiencies of the child pornography guideline provisions. 754 F.3d at 900. We held that the report did not affect the validity of § 2G2.2 in nonproduction child pornography cases. Id. As Sheldon recognizes, this forecloses his § 2G2.2 argument. We are bound by the prior panel precedent rule because Cubero has not been over- ruled by the Supreme Court or this Court sitting en banc.
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USCA11 Case: 22-13884 Document: 25-1 Date Filed: 11/30/2023 Page: 1 of 8
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 22-13884 Non-Argument Calendar ____________________
UNITED STATES OF AMERICA, Plaintiff-Appellee, versus KURT BATUCAN SHELDON,
Defendant-Appellant.
Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 3:20-cr-00118-TJC-MCR-1 ____________________ USCA11 Case: 22-13884 Document: 25-1 Date Filed: 11/30/2023 Page: 2 of 8
2 Opinion of the Court 22-13884
Before ROSENBAUM, JILL PRYOR, and TJOFLAT, Circuit Judges. PER CURIAM: Kurt Batucan Sheldon appeals his 262-month sentence, which represents a downward variance from the 840-month guide- lines sentence, for producing and distributing child pornography. Sheldon contends that the District Court erred in two ways: first, by imposing an unreasonable sentence, and second, by violating the Eighth Amendment’s prohibition against cruel and unusual punishment. But Sheldon’s procedural reasonableness argument is fore- closed by our established precedent and his substantive reasonable- ness claim lacks merit because the District Court duly considered the 18 U.S.C. § 3553(a) sentencing factors. As for his Eighth Amendment argument, it fails because Sheldon cites no binding precedent establishing that a sentence below the guidelines violates the Eighth Amendment. Consequently, we affirm. I. Background In late May 2020, a Clay County Sheriff’s Office (CCSO) Deputy learned that a 12-year-old minor victim (MV) had ex- changed sexually explicit messages, pictures, and videos with an adult male. This interaction began when MV posted on social me- dia seeking friends and an individual with the username “K t” re- sponded. MV told “K t” that she was fifteen and “K t” told her that he was twenty-five to twenty-nine years old. The conversation be- came sexual when they began messaging on Snapchat. During USCA11 Case: 22-13884 Document: 25-1 Date Filed: 11/30/2023 Page: 3 of 8
22-13884 Opinion of the Court 3
their interactions, “K t” persuaded MV to send over fifty explicit pictures and videos. Federal law enforcement tracked the IP address connected to the Snapchat account and found it was assigned to Sheldon’s ad- dress in Interlachen, Florida. Law enforcement searched Sheldon’s bedroom and found a thumb drive with multiple videos and images of child pornography. In an interview, Sheldon estimated that he asked at least ten girls he knew to be underage to send him sexually explicit images, including MV. Sheldon also admitted that he had been viewing child pornography for several years, was sexually attracted to chil- dren, and masturbated while viewing child pornography. At least 1,070 images and 210 videos of child pornography were discovered on Sheldon’s electronic devices. In 2022, Sheldon pleaded guilty to one count of producing child pornography and two counts of distribution. At sentencing, neither party objected to the presentence investigation report, which gave Sheldon a total offense level of forty-three and a crimi- nal history category I. The guidelines were capped at the statutory maximum of 840 months’ imprisonment. The Government recommended a sentencing range of 292 to 365 months, underscoring Sheldon’s progression from viewing to producing child pornography and using social media to groom minors. Sheldon sought a downward variance to the fifteen-year mandatory minimum. He argued that this was his first criminal offense, that the sentencing guidelines should carry minimal USCA11 Case: 22-13884 Document: 25-1 Date Filed: 11/30/2023 Page: 4 of 8
4 Opinion of the Court 22-13884
weight because they were “skewed,” that the Government’s recom- mendation amounted to a life sentence, and emphasized his ac- ceptance of the nature and circumstances of the offense. The District Court acknowledged the gravity of the case, de- scribing it as “child pornography of the worst order.” While rec- ognizing that mere gratification from viewing such material is con- cerning, the District Court emphasized that Sheldon took it further by grooming MV, escalating from innocent conversations to ex- plicit sexual acts. The District Court found that Sheldon’s history and characteristics, including his major depressive disorder, were not “completely remarkable” and that many with such a disorder don’t engage in child pornography. The District Court acknowl- edged Sheldon’s forthrightness with law enforcement and genuine remorse. Still, it stressed the need for a sentence that reflected the seriousness of the offense and provided accountability. The Dis- trict Court expressed uncertainty about Sheldon’s low risk of recid- ivism and underscored the importance of public protection in de- termining the sentence. The District Court agreed that the sen- tencing guidelines were “not very helpful” here. However, it disa- greed that the Government’s recommended sentence was “a life sentence.” Ultimately, the District Court sentenced Sheldon to 262 months’ imprisonment followed by a life term of supervised re- lease. Sheldon objected to the reasonableness of his sentence and now appeals. USCA11 Case: 22-13884 Document: 25-1 Date Filed: 11/30/2023 Page: 5 of 8
22-13884 Opinion of the Court 5
II. Discussion A. Reasonableness Sheldon argues that his sentence is procedurally unreasona- ble. He says U.S. Sent’g Guidelines Manual (U.S.S.G.) § 2G2.2 (U.S. Sent’g Comm’n 2021)—used to calculate his offense level—concen- trates all offenders at or near the statutory maximum, which con- travenes § 3553’s requirements. He argues we should invalidate U.S.S.G. § 2G2.2, citing a 2012 Sentencing Commission report re- garding the sentencing disparities among nonproduction child por- nography defendants. He concedes we rejected this argument in United States v. Cubero, 754 F.3d 888 (11th Cir. 2014), but asks us to reexamine it. We review the reasonableness of a sentence for an abuse of discretion. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). Reviewing reasonableness is a two-part process that requires us to ensure that the District Court did not commit a significant procedural error and that the sentence is substantively reasonable under the totality of the circumstances. Id. The party challenging the sentence bears the burden of showing unreasonableness. Id. We will hold that a significant procedural error has been made if a district court calculates the guidelines incorrectly, disre- gards the § 3553(a) factors, bases the sentence on clearly erroneous facts, neglects to explain the sentence, or treats the guidelines as mandatory rather than advisory. Gall v. United States, 552 U.S. 38, 51 (2007). Or if it treats the guidelines as presumptively reasonable. United States v. Hill, 643 F.3d 807, 880 (11th Cir. 2011). USCA11 Case: 22-13884 Document: 25-1 Date Filed: 11/30/2023 Page: 6 of 8
6 Opinion of the Court 22-13884
In Cubero, this Court addressed child pornography cases spe- cifically when it discussed a Sentencing Commission report on the deficiencies of the child pornography guideline provisions. 754 F.3d at 900. We held that the report did not affect the validity of § 2G2.2 in nonproduction child pornography cases. Id. As Sheldon recognizes, this forecloses his § 2G2.2 argument. We are bound by the prior panel precedent rule because Cubero has not been over- ruled by the Supreme Court or this Court sitting en banc. See United States v. White, 837 F.3d 1225, 1228 (11th Cir. 2016) (per cu- riam). The District Court didn’t treat the guidelines as mandatory or presumptively reasonable. It explicitly acknowledged that the guidelines were “not very helpful,” which explains its substantial downward variance. Nor has Sheldon shown his 262-month sentence is substan- tively unreasonable. Sheldon argues that the District Court gave undue weight to his offense conduct—particularly his admission that he had been engaging in the conduct several years before his arrest—and not enough weight to his personal history and charac- teristics. He asserts that the District Court was too concerned with punishing him for his three-year involvement in child pornography. He also argues that the District Court failed to give sufficient weight to his individual history and the nature of the charges against him and that the recidivist offender guidelines overrepre- sent his criminal history. We will not substitute our judgment for that of the sentenc- ing court. See United States v. Rosales-Bruno, 789 F.3d 1249, 1257 USCA11 Case: 22-13884 Document: 25-1 Date Filed: 11/30/2023 Page: 7 of 8
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(11th Cir. 2015). The question is whether the District Court’s deci- sion was “in the ballpark of permissible outcomes.” Id. (quoting United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010)). Likewise, a district court’s imposition of a sentence well below the statutory maximum penalty indicates reasonableness. United States v. Cro- teau, 819 F.3d 1293, 1310 (11th Cir. 2016). The District Court did not exclusively rely on Sheldon’s three-year involvement with child pornography to the exclusion of mitigating factors. Instead, it grappled with the gratification that Sheldon received from viewing child pornography and the escala- tion from viewing child pornography to grooming MV to perform sexual acts, which the District Court saw as “child pornography of the worst order.” It considered the overarching goals of sentenc- ing, focusing on the need to provide “accountability” and a public protection component—as the court was unconvinced of Shel- don’s low risk for recidivism. It balanced these circumstances and goals against mitigating factors such as Sheldon’s personal history and characteristics, willingness to be forthright, and genuine re- morse. Although Sheldon had no criminal history, which would oth- erwise be a mitigating factor, the District Court found this factor was undermined by the facts of his case. The District Court noted the aggravating circumstance of grooming a minor, which it deemed an “escalation.” The weight given to each factor is left to the District Court’s discretion and it did not abuse that discretion in deciding that the factors weighed in favor of a variance below USCA11 Case: 22-13884 Document: 25-1 Date Filed: 11/30/2023 Page: 8 of 8
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the guidelines, but less than the one Sheldon requested. Further, Sheldon’s 262-month sentence was a substantial downward vari- ance from the 840-month guidelines calculation—another indica- tion of reasonableness. C. Eighth Amendment Sheldon argues that his sentence violates the Eighth Amend- ment. He says that his 262-month sentence is excessive and grossly disproportional because he was a first-time offender with nonvio- lent offenses. An Eighth Amendment challenge raised for the first time on appeal is reviewed for plain error. United States v. Suarez, 893 F.3d 1330, 1335 (11th Cir. 2018). Sheldon did not make his con- stitutional arguments to the District Court, so we review them for plain error. There can be no plain error when the issue is not directly resolved by law from the Supreme Court or this Court. United States v. Johnson, 981 F.3d 1171, 1191 (11th Cir. 2020). Sheldon has identified no binding precedent under which the Supreme Court or this Court has found that a sentence below the guideline range and well below the applicable statutory maximum violated the Eighth Amendment. Therefore, he cannot show plain error. See Johnson, 981 F.3d at 1191. The District Court’s judgment is AFFIRMED.