United States v. Michael Mizrachy

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 23, 2023
• Docket: 22-12050
• Status: Unpublished

Opinion

USCA11 Case: 22-12050 Document: 30-1 Date Filed: 05/23/2023 Page: 1 of 4

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 22-12050 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MICHAEL MIZRACHY,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 0:21-cr-60079-AMC-1 ____________________ USCA11 Case: 22-12050 Document: 30-1 Date Filed: 05/23/2023 Page: 2 of 4

2 Opinion of the Court 22-12050

Before NEWSOM, GRANT, and LAGOA, Circuit Judges. PER CURIAM: Michael Mizrachy appeals from his 96-month sentence, amounting to a 25-month upward variance, for possession of child pornography, in violation of 18 U.S.C. §§ 2252(a)(4)(B) and 2252(b)(2). He argues that the district court abused its discretion in imposing a substantively unreasonable sentence. Mizrachy argues that the district court incorrectly viewed his career as a pediatrician as an aggravating factor, and that the district court placed too much emphasis on the severity of the offense which the Guidelines had already considered. We review the reasonableness of a sentence under a defer- ential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). A defendant may preserve an objection to the sub- stantive reasonableness of a sentence by advocating for a shorter sentence before the district court, thereby arguing that a shorter sentence would have been sufficient, and a longer sentence greater than necessary, to comply with statutory purposes of punish- ment. Holguin-Hernandez v. United States, 140 S. Ct. 762, 767 (2020). On substantive reasonableness review, we vacate the sen- tence only 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 to arrive at an unreasonable sentence based on the facts of the case. United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc). A sentence imposed well below the statutory USCA11 Case: 22-12050 Document: 30-1 Date Filed: 05/23/2023 Page: 3 of 4

22-12050 Opinion of the Court 3

maximum penalty is an indicator of a reasonable sentence. United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). The 18 U.S.C. § 3553(a) factors that the court must weigh include, in relevant part, the nature and circumstances of the of- fense and the defendant’s history and characteristics, the need for the sentence to adequately deter criminal conduct, and the need for the sentence to protect the public from further crimes of the defendant. 18 U.S.C. § 3553(a)(1), (2). Although the district court must consider the § 3553(a) fac- tors, it is not required to state on the record that it has explicitly considered each of the factors or to discuss each of them. United States v. Kuhlman, 711 F.3d 1321, 1326 (11th Cir. 2013). Instead, an acknowledgment by the district court that it considered the fac- tors is sufficient. United States v. Turner, 474 F.3d 1265, 1281 (11th Cir. 2007). Moreover, the weight given to each factor lies within the district court’s sound discretion, and it may reasonably attach great weight to a single factor. Kuhlman, 711 F.3d at 1327. A dis- trict court, however, abuses its discretion if it “(1) fails to afford consideration to 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 in considering the proper factors.” Irey, 612 F.3d at 1189. We conclude that the district court did not abuse its discre- tion. While the district court had discretion to impose a lower sen- tence, it was reasonable for the district court to find that a 96-month term of imprisonment was sufficient but not greater than USCA11 Case: 22-12050 Document: 30-1 Date Filed: 05/23/2023 Page: 4 of 4

4 Opinion of the Court 22-12050

necessary. The district court stated that it had considered the § 3553(a) factors, and it found that the aggravating factors—includ- ing the severity of the offense and that Mizrachy was acutely aware of the vulnerability of children because he was a pediatrician—out- weighed the mitigating factors. Accordingly, we affirm Mizrachy’s sentence. AFFIRMED.