USA v. David Jacob Mitchell

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10231
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID JACOB MITCHELL,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:22-cr-00168-MSS-SPF-1
____________________
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2 Opinion of the Court 23-10231
Before R OSENBAUM , BRANCH, and GRANT, Circuit Judges.
PER CURIAM:
David Mitchell appeals his below-guidelines 600-month total
imprisonment sentence for production of child pornography,
distribution of child pornography, transfer of obscene material to a
minor, and possession of child pornography. He argues that his
sentence is substantively unreasonable because the district court
imposed too severe a penalty considering his mitigating personal
history, resulting in an unwarranted sentencing disparity between
him and defendants convicted of similar crimes. After review, we
affirm.
I. Background
In June 2022, Mitchell was charged by superseding
indictment with production (Count 1), distribution (Count 2), and
possession (Count 4) of child pornography, in violation of 18 U.S.C.
§ 2251(a) and (e), § 2252(a)(2), (a)(4)(B), and (b)(1)–(2). He was also
charged with transfer of obscene material to a minor (Count 3), in
violation of 18 U.S.C. § 1470. Mitchell pleaded guilty to all counts
without the benefit of a plea agreement.
In preparation for sentencing, a presentence investigation
report (“PSI”) was prepared. The PSI described the offense
conduct as follows. On October 18, 2021, an undercover detective
(“UC”), purporting to be a 13-year-old female, received a message
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23-10231 Opinion of the Court 3
from Mitchell’s Kik1 account. During Mitchell’s communications
with the UC, Mitchell sent around 15 videos of children (many
between the ages of 5 and 11) being sexually abused, as well as
several videos of himself masturbating. Mitchell also sent the UC
a video of child pornography that he stated he created with a 15-
year-old female. Mitchell expressed interest in coming to visit the
UC and making videos of sexual acts with the UC. Mitchell
admitted that he thought the UC was a minor.
On April 21, 2022, law enforcement executed a search
warrant at Mitchell’s residence. Federal agents seized and
forensically reviewed multiple electronic devices recovered from
his residence. Agents discovered the following. Between
September and October 2017, Mitchell “enticed, induced, and
coerced Victim 1,” who was 15 years old at the time, “to send
images and videos of herself engaged in sexually explicit conduct.”
Mitchell also tried to set a time to meet with Victim 1 in-person.
Mitchell’s devices also contained images and videos of minors
engaged in sexual acts, including toddlers and children under the
age of 12. Mitchell also conducted searches of underaged girls on
his iPhone. In total, law enforcement discovered 78 images and 30
videos of child pornography across his devices. Mitchell’s advisory
guidelines range was the statutory maximum of 960 months’
1 Per the PSI, “Kik is a web-based instant messaging mobile application that
allows users to transmit and receive messages, photos, and videos. Users can
communicate privately with other users or in groups.”
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4 Opinion of the Court 23-10231
imprisonment.2 He faced a statutory-minimum term of 180
months’ imprisonment.
Mitchell argued for a downward variance from 960 months
to the statutory minimum of 180 months’ imprisonment in light of
his personal background. Mitchell stated that his mother was
verbally abusive and suffered from alcoholism, which led to liver
disease and her death at a young age. Despite the turmoil his
mother’s alcoholism caused him, Mitchell stated that his
relationship with his mother “was not horrible” and that he “did
not cope well” with her passing in 2003. Mitchell suffered from
anxiety, depression, pedophilic disorder, and post-traumatic stress
disorder, and had twice attempted suicide. He also submitted a
psychosexual evaluation and mitigation analysis, which expanded
on the effect his mother’s alcoholism had on him, as well as his
mental illness and his own struggles with substance abuse and
addiction.
In his allocution at sentencing, Mitchell accepted
responsibility and apologized to the court. Mitchell’s counsel
noted that Mitchell had changed for the better since his arrest
because he had stopped using drugs and was no longer
experiencing withdrawals. His counsel maintained that the
2 Mitchell’s base offense level of 43 and his criminal history category of I
resulted in a guidelines range of life. However, where, as here, “the statutorily
authorized maximum sentence is less than the minimum of the applicable
guideline range, the statutorily authorized maximum sentence shall be the
guideline sentence.” U.S.S.G. §§ 5G1.1(a), 5G1.2(b) cmt. (n.3(B)).
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23-10231 Opinion of the Court 5
statutory-minimum sentence of 180 months’ imprisonment was
appropriate.3
The government argued for 960 months’ imprisonment. It
asserted that Mitchell’s behavior was predatory and that he was a
danger to the community. The government noted that Mitchell
had continuously engaged in this conduct for several years and his
contact with the UC was “calculated and premeditated.” It
maintained that Mitchell’s mitigating personal circumstances were
outweighed by the serious nature of the offense and that he was at
a high risk of reoffending. Thus, the government argued that a
guideline sentence was necessary to recognize the harm suffered
by the young victims, promote respect for federal law and societal
norms, provide just punishment and deterrence, and protect the
public.
The district court sentenced Mitchell to a downward
variance of 600 months’ imprisonment—360 months for Count 1
followed by a consecutive term of 240 months on Counts 2, and
concurrent terms of 120 months as to Counts 3 and 4—to be
followed by 160 months’ supervised release. The court said that it
“t[ook] no pleasure in imposing” this sentence “but the
consequences of [Mitchell’s] behavior . . . called for it[.]” With
regard to Mitchell’s mitigation arguments, the district court noted
that it could not “identify mitigating factors that would take
3 The U.S. Probation Office recommended a downward variance of 480
months’ imprisonment based on Mitchell’s decision to plead guilty and his
personal history of mental health issues and substance abuse.
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[Mitchell] out of what [was] intended to be the heartland of cases
and defendants in these types of offenses.” The court explained
that it had considered the 18 U.S.C. § 3553(a) factors and advisory
guidelines, and that the sentence complied with the statutory
purposes of sentencing.
Mitchell objected to the substantive reasonableness of the
sentence, and this appeal followed.
II. Discussion
On appeal, Mitchell argues that his below-guidelines 600-
month sentence is substantively unreasonable because it was
greater than necessary to protect the public and promote the goals
of sentencing. In light of his mitigating factors, Mitchell argues for
a sentence between the statutory minimum (180 months) and what
probation recommended (480 months). He also maintains that his
sentence “create[d] an unwarranted sentencing disparity.”
We review the reasonableness of sentencing decisions under
the deferential abuse-of-discretion standard. Gall v. United States,
552 U.S. 38, 51 (2007). A district court abuses its discretion at
sentencing 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.” United States v. Irey,
612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (quotations omitted).
The party challenging the sentence bears the burden of showing
that the sentence is unreasonable in light of the record, the
sentencing factors listed in 18 U.S.C. § 3553(a), and “the substantial
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23-10231 Opinion of the Court 7
deference afforded sentencing courts.” United States v.
Rosales-Bruno, 789 F.3d 1249, 1256 (11th Cir. 2015).
“A district court has considerable discretion in deciding
whether the § 3553(a) factors justify a variance and the extent of
one that is appropriate.” United States v. Oudomsine, 57 F.4th 1262,
1266 (11th Cir. 2023) (quotations omitted). Thus, we may affirm a
sentence even though we might have imposed a different sentence
had we been in the district court’s position. Irey, 612 F.3d at 1189.
We will vacate a district court’s sentence “only if 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 is outside the range of reasonable
sentences dictated by the facts of the case.” United States v.
Goldman, 953 F.3d 1213, 1222 (11th Cir. 2020) (quoting Irey, 612 F.3d
at 1190). “[W]e do not presume that a sentence outside the
guidelines range is unreasonable and . . . must give due deference
to the district court’s decision that the § 3553(a) factors support its
chosen sentence.” Id. at 1267. And “[a] sentence imposed well
below the statutory maximum penalty is an indicator of a
reasonable sentence.” United States v. Stanley, 739 F.3d 633, 656
(11th Cir. 2014).
The “overarching” instruction to sentencing courts in 18
U.S.C. § 3553 is that any sentence, whether within the guideline
range or through a variance, must be sufficient but not greater than
necessary to comply with the goals of sentencing listed in
§ 3553(a)(2). Kimbrough v. United States, 552 U.S. 85, 101 (2007); see
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8 Opinion of the Court 23-10231
18 U.S.C. § 3553(a); Gall, 552 U.S. at 51 (stating that whether a
sentence falls inside or outside the guideline range, the district
court must consider the § 3553(a) factors). The relevant factors
under § 3553(a) include the nature and circumstances of the
offense, the personal history and characteristics of the defendant,
the seriousness of the crime, and the need for the sentence to
promote respect for the law, provide just punishment, and afford
adequate deterrence. 18 U.S.C. § 3553(a)(1)–(2). The court must
also consider the applicable guideline range, any pertinent policy
statements from the Sentencing Commission, and the need to
avoid unwarranted sentencing disparities between similarly
situated defendants and provide restitution to any of the
defendant’s victims. Id. § 3553(a)(3)–(7).
The district court does not have to give all the factors equal
weight and is given discretion to attach great weight to one factor
over another. Rosales-Bruno, 789 F.3d at 1254. The “district court
need not account for every § 3553(a) factor, nor must it discuss each
factor and the role that it played in sentencing.” United States v.
McBride, 511 F.3d 1293, 1297 (11th Cir. 2007). The failure to discuss
mitigating evidence does not indicate “that the court erroneously
ignored or failed to consider this evidence.” United States v. Amedeo,
487 F.3d 823, 833 (11th Cir. 2007) (quotations omitted).
The district court did not abuse its discretion in sentencing
Mitchell to 600 months’ imprisonment. Mitchell’s sentence is well
below both the guideline range and the statutory maximum of 960
months’ imprisonment, which is an indicator of reasonableness.
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23-10231 Opinion of the Court 9
Stanley, 739 F.3d at 656 (“A sentence imposed well below the
statutory maximum penalty is an indicator of a reasonable
sentence.”). And the district court reached this sentence after
considering the parties’ arguments, Mitchell’s background and
history, the PSI, and the § 3553(a) factors. The district court noted
that it “t[ook] no pleasure” in imposing the sentence, but that it
could not “identify mitigating factors that would take [Mitchell]
out of what is intended to be the heartland of cases and defendants
in these types of offenses.” It then concluded that the “sentence
[was] sufficient but not greater than necessary to comply with the
statutory purposes of sentencing.” Given the seriousness of the
offense and the high risk of reoffending, it was reasonable for the
district court to determine that the mandatory-minimum sentence
was unwarranted and that a longer sentence was necessary to
accomplish the sentencing goals of § 3553(a).4
Furthermore, we have expressed that “the more serious the
criminal conduct is the greater the need for retribution and the
longer the sentence should be.” Irey, 612 F.3d at 1206 (en banc). And
as we have repeatedly emphasized, “[c]hild sex crimes are among
the most egregious and despicable of societal and criminal
4 Mitchell also argues, in passing, that the district court imposed a 600-month
sentence simply because “the guideline suggest[ed] that it [was] appropriate.”
But there is no evidence that the district court treated the guidelines as
mandatory. The guidelines suggested a harsher sentence than 600 months,
and the district court explicitly considered other factors in its decision than just
the guidelines, including the § 3553(a) factors, the parties’ arguments,
Mitchell’s background and history, and the PSI.
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10 Opinion of the Court 23-10231
offenses.” Id. (alteration in original) (quoting United States v. Sarras,
575 F.3d 1191, 1220 (11th Cir. 2009)). As a result, we have
frequently upheld lengthy sentences in cases involving child
pornography and sex crimes. See United States v. Johnson 451 F.3d
1239, 1244 (11th Cir. 2006) (upholding as reasonable a 140-year
sentence for producing and distributing child pornography
involving three boys between the ages of 8 and 16); United States v.
Sarras, 575 F.3d 1191, 1221 (11th Cir. 2009) (upholding as reasonable
a 1,200-month sentence for three counts of knowingly persuading
a minor to engage in sexually explicit conduct and one count of
knowingly possessing child pornography).5
Accordingly, we conclude Mitchell’s sentence is
substantively reasonable, and we affirm the district court.
AFFIRMED.
5 Mitchell mentions in passing that the district court’s sentence created an
unwarranted sentencing disparity with other defendants. We disagree. First,
he fails to identify another defendant who is similarly situated to him. See
United States v. Duperval, 777 F.3d 1324, 1338 (11th Cir. 2015) (explaining that
“[w]hen we consider disparity in sentencing, we first ask whether the
defendant is similarly situated to the defendants to whom he compares
himself”). Second, the district court explicitly varied downward from the
guideline range of 960 months’ imprisonment in order to “avoid unwarranted
sentencing disparities among defendants.”
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