USA v. Joaquin Herrera

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10075
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOAQUIN HERRERA,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 5:19-cr-00068-TKW-MJF-1
____________________
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2 Opinion of the Court 21-10075
Before N EWSOM , BRANCH, and G RANT, Circuit Judges.
PER CURIAM:
Joaquin Herrera pleaded guilty to four counts of production
of child pornography and one count of possession of child pornog-
raphy. The district court imposed a below-Guidelines sentence of
100 years, which Herrera claims was substantively unreasonable.
We disagree and affirm.
I
In 2019, police received a report that an eight-year-old girl
had been molested by her neighbor. That neighbor turned out to
be Herrera. The police then obtained a search warrant for Her-
rera’s apartment and seized his electronic devices. Upon executing
a second warrant for the devices’ contents, law enforcement dis-
covered child pornography on Herrera’s cellphone, including lewd
images depicting the girl who had reported him. A grand jury re-
turned an indictment against Herrera, charging him with four
counts of producing child pornography and one count of pos-
sessing child pornography.
The details of Herrera’s crimes are disturbing. Counts 1 and
3 related to Herrera’s sexual abuse of his girlfriend’s then-six-year-
old daughter. As to Count 1, Herrera filmed himself pulling down
the little girl’s underwear and “spread[ing] her vagina open.” After
lifting the girl’s legs in the air and “wiping her vagina with a rag,”
Herrera “gets on his knees,” touches the child’s genitals, “exposes
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21-10075 Opinion of the Court 3
himself, and begins masturbating.” For Count 3, Herrera took six
pictures of the child with her legs in the air while he “us[ed] his
fingers to touch and/or spread her vagina open.”
Turning to Count 2, Herrera produced child pornography
of a second victim, his own eleven-year-old daughter. One video
shows her laying on a bed with her legs spread apart while Herrera
“is rubbing his penis on her vagina.” Another video shows the girl
“on her knees” with her “buttocks, anus, and vagina . . . exposed”
to the camera.
Count 4 relates to the incident with Herrera’s neighbor—a
third victim. Police discovered pornographic images of the girl cor-
roborating the reported molestation. And in those images, Herrera
is seen pulling aside the little girl’s bathing suit and fondling her
vagina.
Finally, Count 5 charged Herrera with possessing one video
and nine images depicting child pornography. Those include: (1) a
video of a man “ejaculating into [a female minor’s] open mouth,”
(2) an image of a prepubescent girl “with an erect penis in her
mouth,” (3) a photo of a “penis being inserted into [a prepubescent]
child’s vagina,” (4) a photo of a young girl “with her mouth open
and tongue out, touching an erect penis,” (5) a picture of a naked
young girl exposing her genitals, and (6) multiple images of a male
under 12 “engaged in sexual conduct” with a young woman.
Herrera pleaded guilty to all five counts, and the district
court accepted his plea. At sentencing, Herrera’s offense level was
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4 Opinion of the Court 21-10075
capped at 43 pursuant to Application Note 2 to the Sentencing
Guidelines Table. Although the Guidelines “range” for this offense
level would normally be life, it was reduced to 1,680 months (120
years) to account for various statutory maximums.
See U.S.S.G.
§ 5G1.2 & App. Note 3(B); 18 U.S.C. §§ 2251(e), 2252A(b)(2). The
district court departed downward even further, sentencing Herrera
to a term of 100 years in prison, followed by ten years of supervised
release. Herrera appealed, raising a single challenge to the substan-
tive reasonableness of his sentence.
II
“Substantively unreasonable sentences are ‘rare.’”
United
States v. Kirby, 938 F.3d 1254, 1259 (11th Cir. 2019) (quotation
omitted). We review the reasonableness of a district court’s sen-
tence simply for an abuse of discretion.
Gall v. United States, 552
U.S. 38, 41 (2007). Under this deferential standard, we “may vacate
the sentence only if we ‘are left with the definite and firm convic-
tion that the district court committed a clear error of judgment in
weighing the § 3553(a) factors’ by imposing a sentence that falls
outside the range of reasonableness as dictated by the facts of the
case.”
United States v. Taylor, 997 F.3d 1348, 1355 (11th Cir. 2021)
(per curiam) (quoting
United States v. Irey, 612 F.3d 1160, 1190
(11th Cir. 2010) (en banc)). As the challenger, Herrera “has the bur-
den of showing that the sentence is unreasonable in light of the en-
tire record, the § 3553(a) factors, and the substantial deference af-
forded sentencing courts.”
United States v. Rosales-Bruno, 789
F.3d 1249, 1256 (11th Cir. 2015). And that burden is particularly
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21-10075 Opinion of the Court 5
onerous where, as here, the district court has imposed a sentence
below that recommended by the Guidelines.
See United States v.
Cubero, 754 F.3d 888, 898 (11th Cir. 2014).
Herrera has not shown that his sentence is unreasonable.
First, consider the seriousness of his crimes and the need to provide
just punishment.
See 18 U.S.C. § 3553(a)(1), (a)(2)(A). As the dis-
trict court emphasized, “[c]hild sex crimes are among the most
egregious and despicable of societal and criminal offenses.”
United
States v. Sarras, 575 F.3d 1191, 1220 (11th Cir. 2009);
accord United
States v. Hall, 965 F.3d 1281, 1299 (11th Cir. 2020);
Kirby, 938 F.3d
at 1259;
Irey, 612 F.3d at 1206. We’ve therefore consistently upheld
severe sentences for defendants convicted of such heinous crimes.
See, e.g.,
Sarras, 575 F.3d at 1221 (1,200 months);
Kirby, 938 F.3d at
1258–59 (1,440 months);
United States v. Johnson, 451 F.3d 1239,
1240–41 (11th Cir. 2006) (per curiam) (1,680 months).
This case is no exception. The district court noted the po-
tentially devastating impact of Herrera’s conduct on the innocent,
young victims.
See Irey, 612 F.3d at 1207 (“[C]hildhood sexual
abuse has devastating and long-lasting effects on its victims.” (citing
New York v. Ferber, 458 U.S. 747, 758 n.9 (1982)). And it explained
that this case involved the “more troubling aspect”—and remem-
ber we’re talking about more troubling than the average child por-
nography case—of a “familial relationship” between the offender
and some of the victims. Further, the court observed that Her-
rera’s acts included “physical touching” of the children—not just
“run-of-the-mill photographing”—“which exacerbates the nature
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6 Opinion of the Court 21-10075
of th[e] crime even more.” These factors magnify the seriousness
of Herrera’s crimes and the need for stiff punishment.
See Irey, 612
F.3d at 1209 (“The less it takes to have the statutory minimum sen-
tence imposed, the higher the sentence should be for someone who
does much, much worse than the minimum amount of criminal
behavior that would violate the statute.”).
In addition, the district court stressed the need to protect the
public—particularly innocent children—in the future.
See 18
U.S.C. § 3553(a)(2)(C). Herrera disputes this factor, arguing that he
is “not incorrigible,” and that the district court should have found
that his crimes were merely “the product of ongoing battles with
drug addiction, depression and anxiety.” Br. of Appellant at 20, 23–
24. But the district court explicitly accounted for Herrera’s “serious
drug addiction” and his “mental health issues” in its assessment,
explaining that these mitigating factors, among others, “cut in [his]
favor.”
See 18 U.S.C. § 3553(a)(1). Even so, the court reasoned that
the stored images on Herrera’s phone and his masturbation and
physical touching of the girls in those images “strongly suggest that
there is some level of proclivity” to commit this type of crime. As
such, the court was justifiably concerned that Herrera might revert
to subjecting prepubescent girls to sexual abuse. Moreover, the
court described how “even a relatively low risk” of recidivism
wasn’t dispositive of the need to protect the public, given the “ex-
tremely high societal impact” that would result were Herrera to
reoffend. That analysis was proper.
See Irey, 612 F.3d at 1217 (“Ad-
equate protection is a function of two variables: the level of risk
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21-10075 Opinion of the Court 7
that conduct will occur and the level of harm that will be inflicted
if that conduct does occur.”).
In short, the district court’s below-Guidelines sentence was
substantively reasonable. “[G]iven the broad sentencing discretion
that district courts have and in light of the totality of the circum-
stances, we are simply not ‘left with the definite and firm convic-
tion that the district court committed a clear error of judgment.’”
United States v. Rogers, 989 F.3d 1255, 1265 (11th Cir. 2021) (quot-
ing
Irey, 612 F.3d at 1190).
* * *
Accordingly, we AFFIRM Herrera’s sentence.
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