USA v. Michael Mizrachy

[DO NOT PUBLISH]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
____________________
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2 Opinion of the Court 22-12050
Before N EWSOM , G RANT, and L AGOA , 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
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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
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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.
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