United States v. Michael Mendoza ( 2023 )

USCA11 Case: 22-10368 Document: 45-1 Date Filed: 07/24/2023 Page: 1 of 11
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10368
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL MENDOZA,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:20-cr-20113-JEM-1
____________________
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2 Opinion of the Court 22-10368
Before LUCK, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM:
Michael Mendoza appeals his conviction and 120-month
sentence for receiving and possessing child pornography. We af-
firm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. Search and Indictment
In September 2019, law enforcement searched Mendoza’s
home and seized multiple pieces of electronic media, including a
computer, two external hard drives, and eleven compact discs.
The computer contained six videos of minors engaged in sexually
explicit conduct, including a partially downloaded video that was
saved in the shared folder of a peer-to-peer file sharing program.
The CDs and hard drives contained a combined total of 309 photos
and videos of child pornography.
1
In a post-Miranda interview, Mendoza told law enforce-
ment that he downloaded child pornography using peer-to-peer file
sharing programs, saved it onto the CDs, and labeled the CDs with
terms indicating their content. Mendoza said that he worked as a
systems operator at a datacenter, acknowledged that he knew how
peer-to-peer file sharing works, and admitted that he frequently
cleared out the shared folder of the peer-to-peer file sharing
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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22-10368 Opinion of the Court 3
program. A federal grand jury charged Mendoza with receipt of
child pornography, in violation of 18 U.S.C. sections 2252(a)(2) and
(b)(1), and possession of child pornography, in violation of 18
U.S.C. sections 2252(a)(4)(B) and (b)(2).
B. Plea
Mendoza signed a factual proffer, without a written plea
agreement, that detailed the items seized by law enforcement. At
the change-of-plea hearing, the district court advised Mendoza that
he should ask for clarification as needed and instructed him not to
answer any questions he didn’t understand. Mendoza said that
he’d fully discussed the charges with his attorney and expressed sat-
isfaction with his representation and advice. The district court ex-
plained the rights Mendoza would relinquish by pleading guilty,
and Mendoza affirmed that he understood.
When the district court asked Mendoza whether he’d dis-
cussed the sentencing guidelines with his attorney, Mendoza re-
plied, “I’m not sure about the guidelines, Your Honor.” The dis-
trict court asked Mendoza’s counsel whether he’d discussed the
guidelines with Mendoza, to which he replied: “Judge, I have ex-
plained to him that it’s up to the [c]ourt’s discretion what the guide-
line [range] is, and [how it] will be calculated, but that’s about it.
That’s what we’ve covered.” When the district court asked Men-
doza if he understood that it had the authority to impose a stricter
sentence than the guidelines called for, Mendoza affirmed that he
did. Mendoza listened as the district court went through the facts
and charges against him, and then he pleaded guilty to both counts.
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4 Opinion of the Court 22-10368
The district court determined that Mendoza’s plea was knowing,
voluntary, and supported by an independent factual basis contain-
ing each essential element of the offenses.
C. Sentencing
After the plea, the probation office prepared a presentence
investigation report. Mendoza’s offense level was increased based
on various aggravating factors, including a two-level enhancement
for knowingly engaging in distribution. Adjusted to account for
acceptance of responsibility, Mendoza’s total offense level was
thirty-five. Based on this total offense level and a criminal history
category of I, Mendoza’s guideline range was 168 to 210 months’
imprisonment.
Mendoza objected to the presentence investigation report,
arguing that the guideline range of 168 to 210 months’ imprison-
ment “far exceed[ed]” what was necessary to satisfy the primary
goals of section 3553(a). He took exception to the finding that he’d
knowingly engaged in distribution. He also emphasized the need
to avoid unwarranted sentencing disparities, citing cases within the
Southern District of Florida where courts granted downward vari-
ances, and asked for a similar downward variance. Mendoza at-
tached several positive character reference letters to his motion, in-
cluding one from his brother. The government requested that the
court overrule Mendoza’s objections.
At his sentencing hearing, Mendoza sought to call the same
brother who submitted a character letter in Mendoza’s favor. The
district court denied Mendoza’s request, saying that it had read his
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22-10368 Opinion of the Court 5
brother’s letter carefully and was taking its contents into account
but that it didn’t like to hear the same information again. The dis-
trict court explained that—based on the parties’ presentation at
sentencing, the presentence investigation report, the advisory
guidelines, and the section 3553(a) factors—it was going to vary
downward from the 168- to 210-month range and sentence Men-
doza to 120 months’ imprisonment as to each count, to be served
concurrently. When the district court asked Mendoza if he ob-
jected to the findings of fact or the manner in which the sentence
was imposed, Mendoza stated that he didn’t.
STANDARD OF REVIEW
When an issue is raised for the first time on appeal, we re-
view it for plain error. United States v. Presendieu, 880 F.3d 1228, 1237
(11th Cir. 2018). We generally review the reasonableness of a sen-
tence under a deferential abuse-of-discretion standard. Gall v.
United States, 552 U.S. 38, 41 (2007). But when a defendant doesn’t
raise a relevant objection at the time of sentencing, we also review
for plain error. United States v. Vandergrift, 754 F.3d 1303, 1307 (11th
Cir. 2014). “Under plain-error review, the defendant has the burden
to show that there is (1) error (2) that is plain and (3) that affects
substantial rights. If all three conditions are met, an appellate court
may then exercise its discretion to notice a forfeited error, but only
if (4) the error seriously affects the fairness, integrity, or public rep-
utation of judicial proceedings.” United States v. Monroe, 353 F.3d
1346, 1349 (11th Cir. 2003) (quotations, alterations, and citations
omitted).
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DISCUSSION
On appeal, Mendoza makes what amounts to three argu-
ments: first, that his guilty plea wasn’t knowing and voluntary;
second, that his total sentence was procedurally unreasonable; and
finally, that his total sentence was substantively unreasonable.
A. Knowing and Voluntary Plea
If a defendant waives the right to appeal by pleading guilty,
he may object only to the knowing and voluntary nature of the
plea by showing that the district court failed to confirm that the
plea was knowing and voluntary before accepting it. Boykin v. Ala-
bama, 395 U.S. 238, 242–43 (1969); Wilson v. United States, 962 F.2d
996, 997 (11th Cir. 1992). To determine whether a plea is knowing
and voluntary, the district court must address the defendant per-
sonally in an open hearing and comply with the three “core princi-
ples” of Federal Rule of Criminal Procedure 11 by ensuring that:
(1) the guilty plea is free from coercion; (2) the defendant under-
stands the nature of the charges; and (3) the defendant understands
the direct consequences of his plea. United States v. Jones, 143 F.3d
1417, 1418–19 (11th Cir. 1998). We determine whether the core
concerns were satisfied by reviewing the record of the hearing, id.
at 1420, and there’s a strong presumption that statements made
during a plea colloquy are true, United States v. Medlock, 12 F.3d 185,
187 (11th Cir. 1994).
Mendoza argues that his plea wasn’t knowing and voluntary
because it was premised on a fundamental misunderstanding of
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the federal sentencing guidelines and how they applied to his plea
and the facts of his case. But a review of the hearing reveals that
the district court complied with the core concerns of Rule 11 by
ensuring that Mendoza: (1) had fully discussed the charges with his
attorney and was satisfied with his representation and advice, (2)
understood the rights he would relinquish by pleading guilty, (3)
understood that the district court had the authority to impose a
stricter sentence than the guidelines called for, and (4) understood
the facts and charges against him. Only when Mendoza confirmed
all of this, under oath, did the district court find his plea to be know-
ing and voluntary. And even if Mendoza misunderstood how the
guidelines would be used, the district court adequately informed
him. Because the district court complied with the core concerns
of Rule 11 and Mendoza doesn’t argue that he was coerced, we
conclude that the district court committed no error in accepting
Mendoza’s plea.
B. Procedural Reasonableness
Mendoza argues that his total sentence was procedurally un-
reasonable because: (1) a guideline enhancement for distribution
was improper because he didn’t knowingly distribute the material;
(2) the district court improperly denied his request to present his
brother’s supporting witness testimony at sentencing; and (3) the
district court failed to ensure that he’d reviewed the presentence
investigation report, as required under Federal Rule of Criminal
Procedure 32.
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1. Enhancement for Distributing Child Pornography
Under the sentencing guidelines, the district court must add
two points to a defendant’s offense level if he knowingly distributed
child pornography. U.S.S.G. § 2G2.2(b)(3)(F). The commentary de-
fines distribution as “any act, including possession with intent to
distribute, production, transmission, advertisement, and transpor-
tation, related to the transfer of material involving the sexual ex-
ploitation of a minor.” Id. § 2G2.2 cmt. n.1. This element is satis-
fied when a user allows child pornography files to be accessed on
the internet by placing them in the shared folder of a peer-to-peer
sharing program, knowing that the files are then accessible to oth-
ers. United States v. Spris, 666 F.3d 1284, 1287 (11th Cir. 2012).
Mendoza admitted that he knew how peer-to-peer file shar-
ing works and that he downloaded child pornography using a peer-
to-peer network that was saved in his shared folder, which he fre-
quently cleared out. Accordingly, the distribution element of sec-
tion 2G2.2(b) was satisfied, and the district court didn’t abuse its
discretion in applying the two-level increase.
2. Denial of Brother’s Testimony at Sentencing
The district court did not plainly err in declining Mendoza’s
request to allow his brother to speak at the sentencing hearing.
Federal Rule of Criminal Procedure 32(i)(4) provides a list of peo-
ple who must be permitted to speak at a sentencing hearing, in-
cluding the defendant, his attorney, and the government’s attorney.
Because this list does not include any of a defendant’s relatives,
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including a brother, the district court was not required to allow
Mendoza’s brother to testify.
Also, the district court considered mitigating evidence from
Mendoza’s brother in the character letter he submitted to the
court. While Mendoza suggests, for the first time on appeal, that
his brother might have added to what was already in the record,
there is nothing in the record to support that assertion or show that
if his brother had been allowed to speak, it would have affected the
outcome of his sentencing.
3. Review of Presentence Investigation Report
Rule 32 requires the sentencing court to “verify that the de-
fendant and the defendant’s attorney have read and discussed the
presentence report and any addendum to the report.” Fed. R.
Crim. P. 32(i)(1)(A). In applying an earlier version of Rule
32(i)(1)(A), we’ve held that no specific inquiry is required in order
for the district court to meet this obligation, as long as the record
indicates that the defendant’s counsel reviewed the presentence in-
vestigation report with the defendant. See United States v. Aleman,
832 F.2d 142, 144 & n.6 (11th Cir. 1987). In Aleman, we concluded
that the district court complied with this obligation by asking,
“[A]re there any problems with the presentence report?” Id. at 142.
Here, the record contains numerous indications that Men-
doza’s attorney had reviewed the presentence investigation report
with him before the hearing. Specifically, Mendoza filed objections
to the presentence investigation report, and his attorney discussed
those objections in depth with the district court. Mendoza points
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out that the district court didn’t directly address him at sentencing
to inquire about whether he’d read the presentence investigation
report or reviewed it with his attorney. But such an inquiry wasn’t
required, see id. at 144 n.6, so the district court committed no error.
C. Substantive Reasonableness
We examine whether a sentence is substantively reasonable
considering the totality of the circumstances. Gall, 552 U.S. at 51.
The district court must impose a sentence “sufficient, but not
greater than necessary, to comply with the purposes” listed in sec-
tion 3553(a)(2), including the need to reflect the seriousness of the
offense, promote respect for the law, provide just punishment for
the offense, deter criminal conduct, protect the public from the de-
fendant’s future criminal conduct, and avoid unwarranted sentence
disparities among defendants with similar records who’ve been
found guilty of similar conduct. 18 U.S.C. § 3553(a)(2), (6). A dis-
trict court abuses its discretion when it: (1) fails to consider relevant
factors that were due significant weight, (2) gives an improper or
irrelevant factor significant weight, or (3) commits a clear error of
judgment by balancing the proper factors unreasonably. United
States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc). A sen-
tence imposed well below the statutory maximum penalty is an in-
dicator of its reasonableness. See United States v. Gonzalez, 550 F.3d
1319, 1324 (11th Cir. 2008). We’ll vacate on substantive reasonable-
ness grounds only if we’re left with the definite and firm conviction
that the district court committed a clear error of judgment in
weighing the section 3553(a) factors by arriving at a sentence that
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lies outside the range of reasonable sentences dictated by the facts
of the case. Irey, 612 F.3d at 1190.
Mendoza argues that his sentence was substantively unrea-
sonable based on the section 3553(a) factors. But the only factor he
mentions is whether the sentence resulted in an unwarranted sen-
tencing disparity with similar defendants.
At sentencing, the district court said that it had considered
the presentation of the parties, the presentence investigation re-
port, and the advisory guidelines prior to imposing the sentence.
And it explicitly stated that it considered the section 3553(a) factors.
In particular, it found that a 120-month sentence would be suffi-
cient punishment and deterrence based on the nature and circum-
stances of the offense, and it emphasized the need for the sentence
to reflect the seriousness of the offense while also taking into ac-
count Mendoza’s lack of criminal history and his age. This sen-
tence was far below not only the statutory maximum but also the
guideline range. Thus, Mendoza fails to show that his sentence is
substantively unreasonable in light of the record and the sec-
tion 3553(a) factors. See United States v. Tome, 611 F.3d 1371, 1378
(11th Cir. 2007). Even if Mendoza’s total sentence created a sen-
tencing disparity, the need to avoid such disparities is only one fac-
tor articulated in section 3553(a), and the weight given to any spe-
cific factor is committed to the sound discretion of the district
court. United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007).
AFFIRMED.