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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-13963
Non-Argument Calendar
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D.C. Docket No. 1:19-cr-20800-MGC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ROLANDO VARELA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(August 24, 2021)
Before MARTIN, JORDAN, and GRANT, Circuit Judges.
PER CURIAM:
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Jose Rolando Varela, a federal prisoner, appeals the district court’s order
sentencing him to a 135-month prison term and a 10-year term of supervised
release with special conditions. He raises two arguments on appeal. First, he says
the special condition of his supervised release restricting his access to computers is
unconstitutional. Second, he argues his 135-month prison term is substantively
unreasonable. After careful consideration, we affirm Varela’s sentence.
I.
In 2019 Varela pled guilty to one count of possession of a visual depiction of
a prepubescent minor engaged in sexually explicit conduct, in violation of
18
U.S.C. § 2252(a)(4)(B). At the plea hearing, the parties stipulated to the following
facts. Varela received over 300 video files and over 22,500 images of child
pornography through a peer-to-peer network known to contain child pornography
files. Varela knowingly possessed the files and knew they contained child
pornography as evidenced by his searches and the file names. The videos were
sexually explicit and depicted young children, often prepubescent, in sadistic and
masochistic scenes.
Varela’s Presentence Investigation Report (“PSR”) assigned a base offense
level of 18 pursuant to United States Sentencing Guideline § 2G2.2(a)(1). It then
increased Varela’s offense level by 2 because the material involved a prepubescent
minor under the age of 12, pursuant to USSG § 2G2.2(b)(2); 4 levels because the
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material portrayed sadistic or masochistic conduct, pursuant to USSG
§ 2G2.2(b)(4)(A); 5 levels because Varela engaged in a pattern of activity
involving the sexual abuse or exploitation of a minor, pursuant to USSG
§ 2G2.2(b)(5); 2 levels because the offense involved the use of a computer,
pursuant to USSG § 2G2.2(b)(6); and 5 levels because he was responsible for 600
or more images of child pornography, pursuant to USSG § 2G2.2(b)(7)(D). The
PSR reduced Varela’s offense level by three because he accepted responsibility
and pled guilty, pursuant to USSG § 3E1.1(a), (b). His total offense level was 33.
The PSR assigned Varela a criminal history category of I. It also stated that Varela
has a bachelor’s degree in electrical engineering and was employed as an engineer
for 20 years. The PSR further disclosed that Varela himself was the victim of
sexual abuse when he was a child living in Honduras.
Varela faced a statutory minimum prison term of 10 years and a statutory
maximum of 20 years. Based on his offense level of 33 and criminal history
category of I, Varela’s guideline range was 135 to 168 months’ imprisonment. His
statutory minimum term of supervised release was five years and the applicable
guidelines recommended supervised release from five years to life. Varela’s PSR
also recommended, as a special condition of supervised release, that he not have
access to computers absent permission of the court.
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At the sentencing hearing, Varela asked the district court to impose the
mandatory minimum sentence of 10 years’ imprisonment. In support of his request
for this below-Guidelines sentence, he argued that he had come to the United
States as a young boy and availed himself of all opportunities he was given as an
immigrant—he succeeded in school and worked a respectable job for 20 years. He
also got married, raised a family, and continues to enjoy support from family and
friends. Varela also argued that the trauma he endured as a young boy contributed
to his commission of the crime here. He expressed remorse for his actions and
committed to working on his recovery.
Finally, during allocution, Varela asked the district court not to impose any
restrictions on the use of a computer while on supervised release:
Please allow me, your Honor, to work on my field as an engineer. I
need technology to work. You know, as we all are doing right now, I
need technology. I need computers. I need technology to work. We
[are] no longer living in the ’80s, and technology is everywhere, and
that’s one of the main tools I need to do my job. I don’t care—the
supervision software monitoring, I don’t care what they do, you know,
to check what I am doing, but at least allow me to work and to go to
places, you know, to supervise projects, and stuff like that, you know.
So I’d like you to consider that, you know, because once I get out, I
want to support myself. You know, like I mentioned before, I don’t
like to be a burden to anybody. I want to find other jobs for myself,
help my kids, you know, my daughters’ graduation.
The district court ultimately decided that the guideline range adequately
reflected the factors in
18 U.S.C. § 3553(a) and sentenced Varela to 135 months in
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prison and 10 years of supervised release. The court addressed Varela’s concern
regarding access to computers, but chose to restrict his access for the duration of
his supervised release term absent leave of the court. The court specifically noted
that it would “design an appropriate access to computers to allow [Varela] to
work.” The court then asked for any final objections, and Varela’s counsel said he
had none.
This is Varela’s appeal.
II.
We review unpreserved issues of law for plain error. See United States v.
Vandergrift,
754 F.3d 1303, 1307 (11th Cir. 2014). Under that standard, we will
reverse only if (1) the district court erred; (2) the error was plain; and (3) the error
affected the defendant’s substantial rights.
Id. We must also consider whether the
error seriously affected the fairness, integrity, or public reputation of judicial
proceedings.
Id. We review the substantive reasonableness of a sentence for abuse
of discretion. See Gall v. United States,
552 U.S. 38, 51,
128 S. Ct. 586, 597
(2007).
III.
A. Computer Restriction
Varela argues that the ban on computer use for the entirety of his 10-year
term of supervised release violates his First Amendment right to internet access in
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light of Packingham v. North Carolina, 582 U.S. __,
137 S. Ct. 1730 (2017).
Although Varela says our review of this question is de novo, we think the proper
standard is plain error because he did not object to the challenged condition below.
Vandergrift, 754 F.3d at 1307. We require objections to be made with “specificity
and clarity” in order to “alert the government and the district court to the mistake
of which the defendant complains.” United States v. Ramirez-Flores,
743 F.3d
816, 824 (11th Cir. 2014) (quotation marks omitted) (discussing objections to the
PSR); see also Judd v. Rodman,
105 F.3d 1339, 1342 (11th Cir. 1997) (“an
objection on specific grounds does not preserve the error for purposes of appeal on
other grounds”). In this case, it is true that Varela asked the district court during
allocution not to restrict his computer use. But that is not enough to put the
government and the court on notice that a legal objection was being raised—much
less an objection that the restriction violated his First Amendment rights. Indeed,
Varela did not object to the PSR and when the court asked for any objections after
imposing Varela’s sentence, his counsel responded that he had none. Our review is
therefore for plain error.
If any error was committed as to the computer restriction, it was not plain.
Unless the explicit language of a statute or rule resolves an issue, “there can be no
plain error where there is no precedent from the Supreme Court or this Court
directly resolving it.” United States v. Hesser,
800 F.3d 1310, 1325 (11th Cir.
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2015) (per curiam) (quotation marks omitted). Just last year in United States v.
Bobal,
981 F.3d 971 (11th Cir. 2020), we reviewed for plain error the precise issue
Varela raises here: whether a restriction on computer use during supervised release
is unconstitutional in light of Packingham.
Id. at 976–78. Bobal noted there was
no binding precedent resolving the question and held the district court did not
plainly err in imposing a computer restriction as a special condition of supervised
release.
Id. Like the special condition in that case, Varela’s computer restriction
does not extend beyond his sentence, directly relates to his offense conduct, and
allows Varela to obtain court permission to use a computer. See
id. at 975, 977.
We have not found any binding precedent since the Bobal decision, and Varela
does not point us to any that resolves the question of whether Packingham applies
to the type of computer use restriction at issue here. We therefore cannot say the
district court plainly erred.
B. Substantive Reasonableness
Varela says his 135-month prison term is substantively unreasonable
because the district court failed to properly consider the sentencing factors in
18
U.S.C. § 3553(a). We will vacate a sentence as substantively unreasonable 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 lies outside the range of reasonable sentences dictated by the facts of the case.”
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United States v. Irey,
612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (quotation
marks omitted).
We are not left with that “definite and firm conviction” in this case.
Although Varela argues the district court failed to “meaningfully consider [his]
personal or individual history,” our review of the record suggests otherwise. The
district court gave Varela an opportunity to present mitigating evidence and heard
about his stable employment, supportive family, and childhood trauma. After
hearing this evidence, the court stated that it relied on the entire record and on
counsel’s arguments in imposing its sentence. The court also found that the
advisory guideline range “adequately reflects the factors contained in [§] 3553”
and therefore imposed a sentence within that range.
The district court met the standards set by our precedent. We have expressly
held that the district 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. Docampo,
573 F.3d 1091, 1100 (11th Cir.
2009) (quotation marks omitted). “It is sufficient that the district court considers
the defendant’s arguments at sentencing and states that it has taken the § 3553(a)
factors into account.” United States v. Sanchez,
586 F.3d 918, 936 (11th Cir.
2009). That is what the district court did here. It made clear that it had accounted
for the § 3553(a) factors and it considered Varela’s arguments about his personal
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circumstances and individual history. We cannot say the district court abused its
discretion by failing to do more.
AFFIRMED.
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