USA v. Candido Dejesus Osorio

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-16107
Non-Argument Calendar
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D.C. Docket No. 2:11-cr-14035-JEM-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
CANDIDO DEJESUS OSORIO,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
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(July 13, 2012)
Before HULL, MARTIN and FAY, Circuit Judges.
PER CURIAM:
Candido Osorio appeals the procedural and substantive reasonableness of
his 235-month sentence for production of child pornography. On appeal, Osorio
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argues that his sentence is procedurally unreasonable because the district court:
(1) considered only one 18 U.S.C. § 3553(a) factor—his guideline range; and
(2) did not consider the fact that, in Florida, Osorio would have been subject to a
maximum sentence of five years’ imprisonment for his crime. He argues that his
sentence is substantively unreasonable because a 180-month sentence would have
been sufficient given the nature of the offense. For the reasons set forth below, we
affirm Osorio’s sentence.
I.
In June 2011, Osorio’s wife discovered a digital camera hidden in the
bathroom she shared with Osorio and her 14-year-old daughter (Osorio’s
stepdaughter). After viewing the video recordings and seeing video of her
daughter completely naked, Osorio’s wife contacted the police. The police
discovered four video recordings, and in each, Osorio was seen setting up the
camera in the bathroom so that it would record the area in front of the shower. In
each video, Osorio’s stepdaughter was completely naked. A few days later, the
police found an additional memory card in Osorio’s truck. This memory card
contained five videos of Osorio setting up the camera in the bathroom and then his
stepdaughter undressing. His stepdaughter was completely naked in the videos.
Osorio pleaded guilty to production of child pornography, in violation of 18
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U.S.C. § 2251(a). His base offense level was 32, pursuant to U.S.S.G. § 2G2.1.
He received a two-level increase, under § 2G2.1(b)(1)(B), because his
stepdaughter was between the ages of 12 and 16 years, and he received a two-level
increase, under § 2G2.1(b)(5), due to his custodial relationship with the minor
victim. Under § 4B1.5(b)(1), Osorio received a five-level enhancement because
his offense was a covered sex crime, §§ 4B1.1 and 4B1.5(a) did not apply, and he
engaged in a pattern of activity involving prohibited sexual conduct. After
receiving a three-level reduction for acceptance of responsibility, under
§ 3E1.1(a), (b), Osorio’s total offense level was 38. Based on an offense level of
38 and a criminal history category of I, Osorio’s guideline range was 235 to 293
months’ imprisonment. The statutory sentencing range was 180 to 360 months’
imprisonment. Osorio did not object to the PSI, but he did submit a letter in which
some of his friends indicated that he was a dedicated and hard-working individual.
At the sentencing hearing, the district court stated that it had reviewed the
factual basis for the guilty plea, the plea agreement, the presentence investigation
report (“PSI”), and the letter submitted on Osorio’s behalf. Osorio stated, through
counsel, that his offense was “very serious,” but he noted that he had pleaded
guilty and taken responsibility for his actions. He asked the court to impose the
statutory minimum sentence of 180 months’ imprisonment, which he argued, was
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sufficient under the factors set forth in 18 U.S.C. § 3553(a). Nothing in Osorio’s
case warranted imposing a longer sentence than the statutory minimum sentence.
Osorio noted that he received enhancements to his base offense level due to the
victim’s age and Osorio’s custodial relationship with the minor victim.
Nonetheless, were it not for § 4B1.5, Osorio’s total offense level would have been
33, and his guideline range would have been 135 to 168 months’ imprisonment.
The court stated that it had considered the parties’ statements; the PSI, which
contained the advisory guideline range; and the statutory factors. The court found
that a low-end guideline range was sufficient to deter Osorio from future criminal
conduct, and the court imposed a 235-month sentence.
II.
We review the reasonableness of a sentence under a deferential abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 591,
169 L.Ed.2d 445 (2007). Under the abuse of discretion standard, we will affirm a
sentence “unless we find that the district court has made a clear error of
judgment.” United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (en
banc). “[W]e will not second guess the weight (or lack thereof) that the [district
court] accorded to a given factor . . . as long as the sentence ultimately imposed is
reasonable in light of all the circumstances presented.” United States v. Snipes,
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611 F.3d 855, 872 (11th Cir. 2010) (quotation omitted), cert. denied, 131 S.Ct.
2962 (2011). The party challenging a sentence bears the burden of establishing
that it is unreasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir.
2005).
In reviewing the reasonableness of a sentence, we conduct a two-step
review, first ensuring that the sentence was procedurally reasonable, meaning that
the district court properly calculated the guideline range, treated the guideline
range as advisory, considered the § 3553(a) factors, did not select a sentence based
on clearly erroneous facts, and “adequately explain[ed] the chosen sentence.”
Gall, 552 U.S. at 51, 128 S.Ct. at 597. At the time of sentencing, the court must
state its reasons for imposing a particular sentence. 18 U.S.C. § 3553(c).
However, the court is not required “to state on the record that it has explicitly
considered each of the § 3553(a) factors or to discuss each of the § 3553(a)
factors.” United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005). Rather, it
is within the district court’s “own professional judgment” to determine the detail
necessary in its statement of reasons. Rita v. United States, 551 U.S. 338, 356,
127 S.Ct. 2456, 2468, 168 L.Ed.2d 203 (2007). It may be clear from the
circumstances of the case that the district court rests its “decision upon the [U.S.
Sentencing] Commission’s own reasoning that the Guidelines sentence is a proper
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sentence (in terms of § 3553(a) and other congressional mandates) in the typical
case, and that the [court] has found that the case before [it] is typical.” Id. at 357,
127 S.Ct. at 2468. “Where the defendant or prosecutor presents nonfrivolous
reasons for imposing a different sentence, however, the judge will normally go
further and explain why he has rejected those arguments.” Id. Where the
circumstances allow for it, the court may provide a brief explanation as to why it
has rejected a request for a variance. Id. Thus, the court’s acknowledgment that it
has considered the § 3553(a) factors together with the parties’ arguments is
sufficient. Talley, 431 F.3d at 786.
Once we determine that a sentence is procedurally sound, we must examine
whether the sentence was substantively reasonable in light of the record and the
§ 3553(a) factors. Id. at 788. The district court is required to “impose a sentence
sufficient, but not greater than necessary, to comply with the purposes set forth in”
18 U.S.C. § 3553(a)(2). 18 U.S.C. § 3553(a). These purposes include the need to
reflect the seriousness of the offense, promote respect for the law, provide just
punishment for the offense, deter criminal conduct, and protect the public from the
defendant’s future criminal conduct. Id. § 3553(a)(2). The court must also
consider the nature and circumstances of the offense, the defendant’s history and
characteristics, the kinds of sentences available, the applicable guideline range, the
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pertinent policy statements of the Sentencing Commission, the need to avoid
unwarranted sentencing disparities, and the need to provide restitution to victims.
Id. § 3553(a)(1), (3)-(7). The need to avoid unwarranted sentencing disparities “is
concerned with unwarranted disparities in sentences among federal defendants.”
United States v. Docampo, 573 F.3d 1091, 1102 (11th Cir. 2009). Thus,
“disparate federal and state sentences” are not a concern under § 3553(a). Id.
“We ordinarily expect a sentence within the Guidelines range to be
reasonable.” United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).
The reasonableness of a sentence may also be indicated when the sentence
imposed is well below the statutory maximum sentence. See id. The goal of
sentencing “is to lock in a sentence that is not too short and not too long, but just
right to serve the purposes of § 3553(a).” Irey, 612 F.3d at 1197. We have
criticized the use of the term “parsimony principle” because “it tends to slant the
discussion toward shorter sentences by emphasizing only” the need to avoid
sentences that are too long. Id.
Osorio’s sentence is both procedurally and substantively reasonable. As to
procedural reasonableness, the court properly calculated the guideline range,
treated that range as advisory, stated that it considered the § 3553(a) factors, and
explained that a 235-month sentence was sufficient to deter Osorio from future
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criminal conduct. As the court explicitly stated that it considered the § 3553(a)
factors and mentioned deterrence specifically, Osorio’s argument that the court
only considered the guideline range is without merit. Moreover, given the
circumstances of the case, the court provided sufficient detail to explain its
decision to impose a sentence within the guideline range. See Rita, 551 U.S. at
356-57, 127 S.Ct. at 2468. The court stated that it had considered the parties’
statements. In his request for a variance, Osorio acknowledged that his crime was
very serious and that the guideline range was greater than the statutory minimum
sentence due to the victim’s age, Osorio’s custodial role, and the § 4B1.5
enhancement. Although Osorio argued that such factors did not warrant a
235-month sentence, it is clear that the court considered and rejected that
argument and determined that the Commission correctly relied on those factors in
establishing the guideline range. See Rita, 551 U.S. at 356-57, 127 S.Ct. at 2468.
Because the court acknowledged that it considered both the § 3553(a) factors and
the parties’ arguments, its explanation of the sentence was sufficient. See Talley,
431 F.3d at 786.
Further, Osorio’s argument that the court should have considered Florida’s
maximum sentence for his conduct is incorrect. One of the goals of sentencing is
to avoid unwarranted disparities in federal sentences. See Docampo, 573 F.3d at
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1102. This sentencing goal does not address “disparate federal and state
sentences,” and the court, therefore, did not need to consider what Osorio’s
sentence might have been in state court. Id.
Osorio’s sentence is also substantively reasonable in light of the record and
the § 3553(a) factors. The court’s sentence of 235 months was within the
applicable guideline range, and we ordinarily expect such a sentence to be
reasonable. See Gonzalez, 550 F.3d at 1324. Osorio’s sentence was also well
below the 360-month statutory maximum penalty, further indicating that it was a
reasonable sentence. See id. The sentence, moreover, met the goals encompassed
within § 3553(a). Osorio made nine video recordings of his 14-year-old
stepdaughter undressing. Considering Osorio’s disregard for the law, a sentence
within the guideline range was necessary to promote respect for the law, provide
just punishment, deter Osorio from further criminal activity, and protect the
public. Due to the serious nature of his crime, a lower sentence was not
warranted, and Osorio’s parsimony principle argument must fail. See Irey, 612
F.3d at 1197. Based on the above, Osorio’s ultimate sentence was reasonable, and
we will not re-weigh the § 3553(a) factors. See Snipes, 611 F.3d at 872.
For the foregoing reasons, we affirm Osorio’s sentence.
AFFIRMED.
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