USA v. Eric Krumm

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11774
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERIC PAUL KRUMM,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 3:19-cr-00053-CAR-CHW-1
____________________
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2 Opinion of the Court 23-11774
Before WILLIAM PRYOR , Chief Judge, and WILSON and L UCK , Cir-
cuit Judges.
PER CURIAM:
Eric Krumm appeals his sentence of 134 months of impris-
onment for two counts of distributing child pornography, 18 U.S.C.
§ 2252A(a)(2)(B) and (b)(1), and one count of possessing child por-
nography, id. § 2252A(a)(5)(B) and (b)(2). Krumm argues that his
sentence is substantively unreasonable. We affirm.
In October 2016, a detective who used a peer-to-peer soft-
ware program to investigate child pornography crimes detected an-
other computer user downloading and sharing child pornography.
The detective connected to that user’s computer and downloaded
files containing child pornography, including a ten-minute video.
A month later, the detective’s computer connected to a computer
and downloaded about 75 images and two videos containing child
pornography. One video was an hour long, and the other video
was eleven hours long and depicted a prepubescent minor undress-
ing at approximately five hours into the video. Officers traced the
internet protocol addresses to Krumm’s residence.
In February 2017, officers executed a search warrant at
Krumm’s residence and seized multiple electronic devices. A digital
forensic examination of the devices revealed “150 unique images
and seven unique videos” containing child pornography, which pri-
marily depicted prepubescent minors, as well as 5,248 images and
two videos containing “erotica/age difficult” material. Krumm’s
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23-11774 Opinion of the Court 3
search history reflected searches for names associated with child
pornography. While investigating Krumm, who worked in infor-
mation technology, officers also discovered that he was the subject
of a 2008 state investigation involving the suspected possession of
child pornography on his work computer.
A jury convicted Krumm of all counts. His presentence in-
vestigation report provided a base offense level of 22, U.S.S.G.
§ 2G2.2(a)(2) (Nov. 2021), added two levels because the material
involved prepubescent minors, id. § 2G2.2(b)(2), added two levels
because he knowingly distributed images and videos containing
child pornography, id. § 2G2.2(b)(3)(F), added four levels because
the material portrayed sadistic or masochistic conduct, id.
§ 2G2.2(b)(4)(A), added two levels for using a computer to commit
the offense, id. § 2G2.2(b)(6), and added five levels because the of-
fense involved 600 or more images, id. § 2G2.2(b)(7). With a total
offense level of 37 and a criminal history category of I, Krumm’s
advisory guideline range was 210 to 240 months of imprisonment,
and his statutory maximum sentence was 720 months. The report
explained that an upward departure might be warranted because
the 11-hour video was substantially longer than five minutes. See
id. § 2G2.2, cmt. n.6(B)(ii).
Krumm objected to the suggestion of an upward departure.
He also requested a downward variance to the mandatory-mini-
mum sentence of 60 months to reflect his lack of criminal history
and his personal characteristics, avoid unwarranted sentencing dis-
parities with similarly-situated defendants, and account for the
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4 Opinion of the Court 23-11774
2012 and 2021 reports by the United States Sentencing Commission
regarding the application of section 2G2.2 to non-production child
pornography defendants. The government opposed a variance.
At sentencing, the district court heard argument from the
parties, received letters from Krumm and his family and character
testimony from his wife, and stated that it reviewed his sentencing
memorandum and the reports of the Sentencing Commission. Af-
ter recessing, the district court returned with a statistical report
from the Commission website that reflected the sentences imposed
on 330 defendants who, like Krumm, had been assigned a total of-
fense level of 37 and criminal history category of I. The district
court stated that these similarly-situated defendants received an av-
erage sentence of 140 months of imprisonment.
The district court varied downward and sentenced Krumm
to 134 months of imprisonment. The district court explained that
it considered the advisory sentencing range and the statutory sen-
tencing factors, 18 U.S.C. § 3553(a), made an individual assessment,
and concluded that the advisory sentencing range was “simply too
much time.” The government objected.
We review the reasonableness of a sentence for abuse of dis-
cretion. Gall v. United States, 552 U.S. 38, 51 (2007). The district
court “imposes a substantively unreasonable sentence only when
it (1) fails to afford consideration to relevant factors that were due
significant weight; (2) gives significant weight to an improper or ir-
relevant factor; or (3) commits a clear error of judgment in consid-
ering the proper factors.” United States v. Taylor, 997 F.3d 1348, 1355
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23-11774 Opinion of the Court 5
(11th Cir. 2021). We will disturb “the sentence if, but 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) fac-
tors by arriving at a sentence that lies outside the range of reason-
able sentences dictated by the facts of the case.” United States v. Irey,
612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (internal quotation
marks omitted).
The district court did not abuse its discretion. The district
court varied downward after weighing the statutory sentencing
factors, 18 U.S.C. § 3553(a), including Krumm’s personal character-
istics and family support, and after considering his arguments that
a guideline-range sentence of 210 to 240 months was greater than
necessary and would result in a significant disparity between him
and similarly-situated offenders. See United States v. Rosales-Bruno,
789 F.3d 1249, 1254 (11th Cir. 2015). Krumm concedes that this “ra-
tionale was sound” but contends that the district court “did not go
far enough.” He contends that he is less culpable than the typical
offender and that the guideline, U.S.S.G. § 2G2.2, treats offenders
who have not produced child pornography too harshly. But the dis-
trict court considered Krumm’s arguments before varying below
his advisory sentencing range by 76 months, agreed with him that
a lower sentence was warranted based on an assessment of his of-
fense and characteristics, and determined that the statutory sen-
tencing factors supported a sentence of 134 months. We cannot say
that it committed a clear error in judgment that makes Krumm’s
sentence too harsh.
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6 Opinion of the Court 23-11774
Insofar as Krumm implicitly challenges the guideline itself,
id., based on the reports of the Sentencing Commission, we have
explained that a defendant’s argument that he should be granted a
downward variance based on his challenge to the Guidelines is a
“non-starter.” United States v. Carpenter, 803 F.3d 1224, 1235 (11th
Cir. 2015). The reports of the Sentencing Commission do not “ren-
der the non-production child pornography guidelines in § 2G2.2 in-
valid or illegitimate,” nor do they “alter the district court’s duties
to calculate the advisory guidelines range” or “require the district
court to vary from the § 2G2.2-based guidelines range.” United
States v. Cubero, 754 F.3d 888, 900 (11th Cir. 2014). We reject
Krumm’s argument that his sentence is unreasonably severe.
We AFFIRM Krumm’s convictions and sentence.
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