USA v. Angelo Victor Fernandes

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11069
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANGELO VICTOR FERNANDES,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 2:22-cr-14046-AMC-1
____________________
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2 Opinion of the Court 23-11069
Before J ORDAN , BRANCH, and L AGOA, Circuit Judges.
PER CURIAM:
Angelo Victor Fernandes appeals his sentence of 188
months’ imprisonment following his guilty plea to the distribution
of child pornography. On appeal, Fernandes argues that the district
court miscalculated his guideline range by applying a 5-level
enhancement based on the guidelines commentary, Section 2G2.2,
n.6(B)(ii), which defines one child pornography video as 75 images.
After careful review, we affirm.
I. Background
Fernandes was charged in an indictment with distribution of
child pornography, in violation of 18 U.S.C. §§ 2252(a)(2) and
(b)(1). Fernandes pleaded guilty.
The presentence investigation report (“PSI”) described the
following offense conduct. On April 30, 2022, Fernandes’ former
coworker, Daniel Crow, had his phone searched and seized by
Homeland Security Investigations (“HSI”) pursuant to a border
search at the Philadelphia airport. A search of Crow’s phone
showed chats with Fernandes in which “Crow promised to send
Fernandes videos of himself masturbating if Fernandes sent him”
child pornography in exchange. Crow and Fernandes also
“discussed Fernandes’ ability to obtain children for sex.”
The videos Fernandes sent to Crow included, for example,
“depictions of prepubescent females engaged in lascivious
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23-11069 Opinion of the Court 3
exhibition”; “prepubescent boys engaged in vaginal intercourse
with possible older sibling females and adult females”; and videos
“depict[ing] an adult male . . . anally penetrating a prepubescent
female who is exhibiting signs” of pain. All of the child
pornography videos Fernandes sent to Crow were shorter than
two minutes.
In July 2022, Fernandes was subjected to a secondary
inspection by HSI at the San Francisco Airport. Agents located the
messages between Fernandes and Crow, as well as a conversation
Fernandes had with another individual “where Fernandes said that
he performed oral sexual acts with a 14-year-old boy.” Agents also
located many other chats “between Fernandes and other
individuals in which [Fernandes] offered to procure children for
sex.” “Based on a forensic examination of Fernandes’[s] phone as
well as Crow’s phone, Fernandes is responsible for 16 still images
and 13 videos that depict child sexual abuse . . . , which
included . . . prepubescent minors under the age of 12” and
toddlers.
The PSI also referenced a statement Fernandes made. Per
the PSI, in that statement, Fernandes said that he “was attracted to
Crow[] and wanted to see sexually explicit material featuring
Crow.” “When [Fernandes] found out that Crow liked child
pornography, [Fernandes] obtained child pornography . . . and
sent it to Crow in hopes that Crow would” send him videos of
Crow masturbating. He also said that he only told Crow that he
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4 Opinion of the Court 23-11069
could arrange encounters with underage children to arouse Crow,
but he did not intend to follow through.
Fernandes received a total offense level of 34, including a
five-level increase because “the offense involved 600 or more
images.” While Fernandes was not responsible for 600 individual
pictures and videos, under § 2G2.2, n.6(B)(ii), each video was
considered to include 75 images. Thus, Fernandes was responsible
for 991 images. “Based upon a total offense level of 34 and a
criminal history category of I,” Fernandes’s guideline range was
151 to 188 months’ imprisonment. The statutory term of
imprisonment was 60 to 240 months.
Fernandes moved for a downward variance. He argued that
he “ha[d] no interest in child pornography” and that his “sole
purpose . . . was to induce [] Crow to send [him] sexual videos of
himself,” and that he was a first-time offender with no criminal
history who was unlikely to reoffend. Fernandes then submitted a
forensic evaluation, which indicated a six-percent chance of
reoffending. He also submitted a polygraph examination, which
suggested that Fernandes had never had a sexual interaction with
someone under the age of 18.
The government opposed the motion, arguing that the
nature and severity of the offense conduct justified a guideline
sentence. The government pointed out that Fernandes “used child
pornography as a type of currency” to trade for sexual videos of the
adults with whom he chatted. The government also provided logs
of Fernandes’s texts to the district court. In the texts, Fernandes
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23-11069 Opinion of the Court 5
talked about different underage boys with whom he had sex, said
that he liked hearing young girls cry in pain during sex with adult
men, and told Crow that he would hold down a young girl so that
Crow could have sex with her.
During his sentencing hearing, Fernandes objected to the
PSI’s guideline calculation, arguing that the term “image” was
unambiguous, so the court could not look to § 2G2.2, n.6(B)(ii),
which defines a video as 75 images. Thus, Fernandes argued that
he had fewer than 600 images, and so his guideline range should
have been 108 to 135 months. The district court overruled
Fernandes’s objection, holding that “there is a strong case to be
made . . . that the guideline is genuinely ambiguous and that” the
guideline’s commentary provides “a reasonable ratio that warrants
deference[.]”
After hearing arguments from both sides regarding the
appropriate sentence, the district court sentenced Fernandes to 188
months’ imprisonment. The court stated it had considered the
parties’ statements, the advisory sentencing guidelines, the 18
U.S.C. § 3553(a) factors, the record, and the expert testimony
offered on behalf of Fernandes. The court said that it viewed
Fernandes’s conduct as “horrific and vile and beyond the pale” and
saw “no basis whatsoever for a downward variance.” The court
then stated that a sentence “at the high end of the guidelines [was]
more than appropriate” and that “frankly a higher sentence than
that would also be appropriate[.]”
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6 Opinion of the Court 23-11069
In support of the sentence, the court said that, based on the
messages, “it is clear . . . that [Fernandes] has a real interest in child
abuse and in taking pleasure from child abuse.” The court
highlighted that Fernandes offered to hold children down “so that
someone else c[ould] molest them,” and that he would enjoy
seeing them suffer. The court also highlighted that Fernandes
offered to arrange for several individuals to meet in person with
underage children. And the court referenced that Fernandes
“discusse[d] his own sexual conduct with at least one minor boy[.]”
While the court said it considered the expert testimony and
the polygraph examination, it said “the reliability of [polygraphs
are] very debatable,” and Fernandes’s polygraph did not change its
analysis of the § 3553(a) factors. The court said that it “considered
the characteristics of [Fernandes], along with the need to protect
the community, the danger [it saw] in [Fernandes’s] conduct, as
well as the need for specific and general deterrence[.]” The court
also said that “to the extent a future Court were to determine that
the 75:1 ratio is somehow invalid, [it] would impose the same
sentence of 188 months’ imprisonment regardless of that issue[.]”
Fernandes renewed his objection to the district court’s
reliance on the guideline commentary’s 75:1 ratio for videos and
argued that the sentence was substantively unreasonable.
II. Discussion
On appeal, Fernandes argues that the district court erred by
treating the guideline commentary’s 75:1 ratio for videos as valid
and relying on it to calculate Fernandes’s guideline range. After
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23-11069 Opinion of the Court 7
careful review, any potential error in calculating the guideline
range was harmless. Accordingly, we affirm.
We review the district court’s interpretation and application
of the sentencing guidelines de novo. United States v. Dupree, 57
F.4th 1269, 1272 (11th Cir. 2023) (en banc). If we decide that the
district court misapplied the sentencing guidelines, “a remand is
appropriate unless [we] conclude[], on the record as a whole, that
the error was harmless, i.e., that the error did not affect the district
court’s selection of the sentence imposed.” Williams v. United
States, 503 U.S. 193, 203 (1992); Fed. R. Crim. P. 52(a).
The district court can render a proposed guidelines error
harmless by stating that it would have imposed the same sentence
even if the defendant prevailed on that issue. United States v. Keene,
470 F.3d 1347, 1349–50 (11th Cir. 2006). In other words, we will
not “set aside [a] reasonable sentence and send the case back to the
district court [where] it has already [said] that it would impose
exactly the same sentence, a sentence we would be compelled to
affirm.” Id. at 1350. That said, “[the] sentence imposed through
the alternative or fallback reasoning of § 3553(a) must be
reasonable.” Id. at 1349. The appellant has the burden of showing
that his sentence would be unreasonable under this alternative
range. Id. at 1350.
When reviewing for substantive reasonableness, we review
the sentence imposed by the district court under an abuse-of-
discretion standard. United States v. Irey, 612 F.3d 1160, 1180 (11th
Cir. 2010) (en banc). The appellant bears the burden of showing
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8 Opinion of the Court 23-11069
that his sentence is unreasonable considering the totality of the
record and the § 3553(a) factors. United States v. Gonzalez, 550 F.3d
1319, 1324 (11th Cir. 2008). As a result of the “substantial deference
district courts are due in sentencing,” we will give the district
court’s “decisions about what is reasonable [a] wide berth and
almost always let them pass.” Irey, 612 F.3d at 1225.
In evaluating substantive reasonableness, the relevant
§ 3553(a) factors include: (1) “the nature and circumstances of the
offense and the history and characteristics of the defendant”; (2) the
need for the sentence “to reflect the seriousness of the offense, to
promote respect for the law, . . . to provide just punishment for the
offense,” “to afford adequate deterrence to criminal conduct,” and
“to protect the public from further crimes of the defendant”; (3)
“the kinds of sentences available”; (4) the sentencing range; and (5)
“the need to avoid unwarranted sentencing disparities among
defendants with similar records” convicted of similar conduct. 18
U.S.C. § 3553(a)(1), (a)(2)(A), (a)(2)(B), (a)(2)(C), (a)(4), (a)(6); see
Gall v. United States, 552 U.S. 38, 50 n.6 (2007). The district court
must “state in open court the reasons for its imposition of the
particular sentence” that it selects. 18 U.S.C. § 3553(c).
We have emphasized that “we must give due deference to
the district court” to consider and weigh the proper § 3553(a)
sentencing factors. United States v. Shabazz, 887 F.3d 1204, 1224
(11th Cir. 2018) (quotations omitted). 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 others.” United States v.
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23-11069 Opinion of the Court 9
Rosales-Bruno, 789 F.3d 1249, 1254 (11th Cir. 2015) (quotation
omitted). Though the district court must consider all the § 3553(a)
factors, “[a]n acknowledgement the district court has considered
the defendant’s arguments and the § 3553(a) factors will suffice.”
Gonzalez, 550 F.3d at 1324. Along with the § 3553(a) factors, the
district court should also consider the relevant conduct and
particularized facts of the defendant’s case and the sentencing
guidelines. Rosales-Bruno, 789 F.3d at 1259-60. The district court
maintains discretion to give heavier weight to any of the § 3553(a)
factors or a combination of factors than to the sentencing
guidelines. Id. at 1259.
The district court also has wide discretion to decide whether
the § 3553(a) factors justify a variance. Gall, 552 U.S. at 51. In
imposing a variance, the district court can contemplate conduct
already considered when calculating the guideline range. United
States v. Johnson, 803 F.3d 610, 619 (11th Cir. 2015). Though a major
variance should be supported by a more significant justification
than a minor variance, 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. Gall, 552 U.S. at 50–54. “[A]n indicator of a
reasonable sentence[]” is one that is “well below the statutory
maximum” for the crime. United States v. Dougherty, 754 F.3d 1353,
1362 (11th Cir. 2014).
We need not reach the merits of Fernandes’s argument
related to the district court applying a 5-level enhancement based
on § 2G2.2, n.6(B)(ii), because any error in calculating his guideline
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10 Opinion of the Court 23-11069
range was harmless. During sentencing, the district court said that
the disputed guidelines issue did not affect its ultimate sentence,
explaining, “to the extent a future Court were to determine that
the 75:1 ratio is somehow invalid, [it] would impose the same
sentence of 188 months’ imprisonment regardless of that issue[.]”
See Keene, 470 F.3d at 1349–50. Thus, for purposes of this opinion,
we will assume there was a guidelines error and “then ask whether
the final sentence . . . would still be reasonable” under the § 3553(a)
factors considering that alternative guideline range, which would
be 108 to 135 months. Id. at 1349.
Considering the relevant § 3553(a) factors, Fernandes’s 188-
month sentence would still be substantively reasonable under the
alternative range of 108 to 135 months. The district court began
by stating that it had considered the parties’ statements, the
advisory sentencing guidelines, the § 3553(a) factors, the expert
testimony, and the record. See Rosales-Bruno, 789 F.3d 1259–60.
The court then undertook an extensive explanation of how it
arrived at the sentence on the record, focusing on the nature of the
offense conduct. Johnson, 803 F.3d at 619.
The court described Fernandes’s conduct as “horrific and
vile and beyond the pale.” It stated that a sentence at the high end
of the guideline range was “more than appropriate” and that
“frankly a higher sentence than that would also be appropriate[.]”
The court highlighted that, based on the messages, “it is clear . . .
that [Fernandes] has a real interest in child abuse and in taking
pleasure from child abuse.” For example, the court referenced
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23-11069 Opinion of the Court 11
messages where Fernandes (1) offered to hold children down “so
that someone else c[ould] molest them”; (2) said he would enjoy
seeing them suffer; (3) offered to arrange for several individuals to
meet in person with underage children; and (4) “discusse[d] his
own sexual conduct with at least one minor boy[.]”
The district court did not find the mitigating evidence
compelling enough to warrant a lower sentence. For example, it
said Fernandes’s polygraph did not change its analysis of the §
3553(a) factors because it believed “the reliability of [polygraphs
are] very debatable[.]” The court said that it “considered the
characteristics of [Fernandes], along with the need to protect the
community, the danger [it saw] in [Fernandes’s] conduct, as well as
the need for specific and general deterrence[.]” The court
maintained its discretion to give heavier weight to these factors
rather than the mitigating factors. Rosales-Bruno, 789 F.3d at 1254,
1259. Furthermore, Fernandes’s sentence of 188 months’
imprisonment is well below the statutory maximum of 240
months’ imprisonment, which is “an indicator of a reasonable
sentence.” Dougherty, 754 F.3d at 1364. Thus, it cannot be said that
the court “committed a clear error of judgment in weighing the §
3553(a) factors[.]” Irey, 612 F.3d at 1190.
Ultimately, because the district court stated it would have
given him the same sentence regardless of the outcome of the
guidelines commentary issue, and because an upward-variance
sentence of 188 months from an alternative guideline range of 108
to 135 months would still be reasonable, any potential error in
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12 Opinion of the Court 23-11069
calculating the guideline range based on § 2G2.2, n.6(B)(ii) was
harmless. See Keene, 470 F.3d at 1349–50. Accordingly, we affirm.
AFFIRMED.
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