United States v. Andrew Atias , 518 F. App'x 843 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-13544
Non-Argument Calendar
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D.C. Docket No. 0:12-cr-60002-JIC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDREW ATIAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(May 14, 2013)
Before WILSON, MARTIN and FAY, Circuit Judges.
PER CURIAM:
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Andrew Atias appeals his 151-month sentence and supervised release
conditions after pleading guilty to receipt of child pornography, in violation of
18 U.S.C. § 2252(a)(2) and (b)(1). On appeal, Atias first contends that his
sentence is procedurally unreasonable because the district court erred by
considering the guideline range to be “presumptively reasonable.” Second, he
asserts that his sentence is procedurally unreasonable because the court failed to
consider the factors in 18 U.S.C. § 3553(a) or his sentencing arguments, and failed
to adequately explain the sentence. Third, Atias argues that the internet and
computer restrictions included in his supervised release are procedurally and
substantively unreasonable. For the reasons that follow, we affirm.
I.
The evidence showed that Atias possessed, and was held accountable for,
over 37,000 images of child pornography, which included images of babies,
toddlers, and young children being raped by adult males, as well as other sadistic
and masochistic conduct involving young children. At sentencing, Atias requested
a variance based on his age (52 years); he also disagreed with the policies
underlying the child pornography guidelines, and argued that they resulted in
substantial base-offense level enhancements in most cases. He also objected to
two recommended supervised release conditions: a prohibition against using a
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computer with internet access without court approval and a prohibition against
possessing and using a computer without court approval.
At sentencing, the district court noted the “horrific” and “unthinkable”
nature of the images Atias possessed, and that the victims’ suffering never ended.
The court also stated: “I do view the Guidelines as presumptively reasonable,” but
acknowledged that it departed on many occasions depending on the 18 U.S.C. §
3553(a) factors. The court found that a 151-month sentence at the low end of the
advisory guideline range was reasonable, and imposed a 20-year term of
supervised release that included the internet and computer restrictions. Atias made
a general objection to the reasonableness of the sentence.
II.
We review the reasonableness of a sentence under a deferential abuse-of-
discretion standard of review. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct.
586, 591 (2007). The party challenging the sentence bears the burden of proving
that the sentence is unreasonable. United States v. Talley, 431 F.3d 784, 788 (11th
Cir. 2005) (per curiam). An argument raised for the first time on appeal may be
reviewed for plain error. United States v. Bacon, 598 F.3d 772, 777 (11th Cir.
2010) (per curiam). The purpose of the plain error rule is “to enforce the
requirement that parties lodge timely objections to errors at trial so as to provide
the district court with an opportunity to avoid or correct any error, and thus avoid
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the costs of reversal and a retrial.” United States v. Turner, 474 F.3d 1265, 1275
(11th Cir. 2007) (emphasis in original).
To establish plain error, an appellant must show “that there was an (1) error
(2) that is plain and (3) that affects substantial rights.” Bacon, 598 F.3d at 777
(internal quotation marks omitted). If these elements are present, we may exercise
our discretion to notice an unpreserved error, but only if “the error seriously affects
the fairness, integrity, or public reputation of judicial proceedings.” Id. (internal
quotation marks omitted). In order to be plain, the error must be clear “under
controlling precedent or in view of the unequivocally clear words of a statute or
rule.” United States v. Schmitz, 634 F.3d 1247, 1270–71 (11th Cir. 2011) (internal
quotation marks omitted). To demonstrate that an error affected a substantial right,
the appellant must show “a reasonable probability of a different result but for the
error.” United States v. Rodriguez, 627 F.3d 1372, 1382 (11th Cir. 2010) (internal
quotation marks omitted). When the effect of an error on the district court’s result
is uncertain or indeterminate, however, the appellant has not met his burden. Id.
To be procedurally reasonable, the district court must properly calculate the
guideline range, treat the Guidelines as advisory, consider the § 3553(a) factors,
not consider clearly erroneous facts, and adequately explain the chosen sentence.
Gall, 552 U.S. at 51, 128 S.Ct. at 597. A sentencing court may not automatically
presume that the applicable guidelines range is reasonable. Nelson v. United
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States, 555 U.S. 350, 352, 129 S. Ct. 890, 892 (2009). “If a district court applies
the guidelines as though they were mandatory or treats the range as presumptively
reasonable, that is procedural error.” United States v. Hill, 643 F.3d 807, 880 (11th
Cir. 2011), cert. denied, 132 S. Ct. 1988 (2012).
Here, because Atias did not specifically object to the district court’s
purported application of a formal “presumption” in favor of the guideline range,
we review this issue for plain error. Although the court’s statement that the
Guidelines were presumptively reasonable constitutes an error that is plain, Atias
fails to demonstrate that the error affected his substantial rights, as there is no
indication in the record that the district court would have otherwise granted his
request for a variance below his low-end sentence.
III.
As noted above, to be procedurally reasonable, the district court must
properly calculate the guideline range, treat the Guidelines as advisory, consider
the § 3553(a) factors, not consider clearly erroneous facts, and adequately explain
the chosen sentence. Gall, 552 U.S. at 51, 128 S. Ct. at 597. Here, the district
court’s acknowledgment that it had considered the § 3553(a) factors and the
parties’ arguments is sufficient; the court does not need 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.” Talley, 431 F.3d at 786 (internal quotation marks omitted).
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When a case is “conceptually simple . . . and the record makes clear that the
sentencing judge considered the evidence and arguments,” a brief statement
regarding the reasons for imposing a particular sentence is legally sufficient. Rita
v. United States, 551 U.S. 338, 359, 127 S. Ct. 2456, 2469 (2007). Furthermore,
“[n]o member of this [c]ourt has ever before indicated that a sentencing judge is
required to articulate his findings and reasoning with great detail or in any detail
for that matter.” United States v. Irey, 612 F.3d 1160, 1195 (11th Cir. 2010) (en
banc).
Here, the district court specifically stated that it had considered the parties’
arguments and the § 3553(a) factors. The court commented on the seriousness of
the crime charged—the images and videos found on Atias’s computer were
“horrific” and involved young children. See United States v. Scott, 426 F.3d 1324,
1329–30 (11th Cir. 2005) (finding the district court adequately addressed the §
3553(a) factors when it considered “‘all the obvious things that you would
normally take in consideration,’ particularly, ‘the age of the child.’”); United States
v. Vautier, 144 F.3d 756, 761 (11th Cir. 1998) (holding that district court
adequately considered the § 3553(a) factors when it “cited defendant’s
demonstrated violence and . . . all the other considerations that went in to the
establishment of this defendant’s sentence.” (alterations in original) (internal
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quotation marks omitted)). The court adequately explained the reasons for the
sentence; no further explanation was needed.
IV.
We review the imposition of a special condition of supervised release for
abuse of discretion. United States v. Taylor, 338 F.3d 1280, 1283 (11th Cir. 2003)
(per curiam). We find an abuse of discretion only when there is a “definite and
firm conviction that the [district] court committed a clear error of judgment in the
conclusion it reached.” Id. (alterations in original) (internal quotation marks
omitted).
A district court may impose any condition of supervised release it deems
appropriate as long as it comports with the § 3553(a) factors, involves no greater
deprivation of liberty than reasonably necessary to achieve the purposes set forth in
§ 3553(a), and is consistent with any pertinent policy statements issued by the
Sentencing Commission. Id. When imposing special conditions on supervised
release, a district court must consider the nature and circumstance of the offense,
the history and characteristics of the defendant, the need for adequate deterrence,
and the need to protect society at large. U.S.S.G. § 5D1.3(b). Each factor is an
independent consideration to be weighed, and as such, a special condition need not
be supported by each factor. United States v. Moran, 573 F.3d 1132, 1139 (11th
Cir. 2009). Although a condition of supervised release should not unduly restrict a
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defendant’s liberty, a condition is not invalid just because it affects the ability to
exercise a constitutionally protected right. Taylor, 338 F.3d at 1283. In addition,
“[c]onditions of supervised release are not vague and overbroad when they are
‘undeniably related’ to the sentencing factors.” United States v. Nash, 438 F.3d
1302, 1307 (11th Cir. 2006) (per curiam) (quoting Taylor, 338 F.3d at 1285).
In United States v. Zinn, we upheld a three-year internet restriction, noting
that the defendant could access the internet after obtaining permission from his
probation officer. 321 F.3d 1084, 1092–93 (11th Cir. 2003). In discussing the
restriction, we noted the “strong link between child pornography and the Internet,
and the need to protect the public, particularly children, from sex offenders.” Id. at
1092. We also noted that the Fifth Circuit had upheld a complete ban on internet
usage. Id.
In Moran, we again upheld a three-year internet restriction while on
supervised release, prohibiting the use of an internet-connected computer without
prior approval. 573 F.3d at 1136, 1140–41. We noted that, “[a]lthough the
internet provides valuable resources for information and communication, it also
serves as a dangerous forum in which an offender can freely access child
pornography and communicate with potential victims.” Id. at 1140.
As noted above, the district court considered the parties’ arguments and the
§ 3553(a) factors, and adequately explained the sentence, such that Atias has failed
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to show that the court’s imposition of the computer and internet restrictions was
procedurally unreasonable. Furthermore, the imposition of those restrictions was
not substantively unreasonable, as Atias still may petition the court for approval to
use either a computer or the internet, and the restrictions were related to the
“horrific” and “unthinkable” nature and circumstances of the offense, as well as the
need for deterrence and public protection.
AFFIRMED.
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