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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11411
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CORY ALAN STEWART,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 2:18-cr-00044-JLB-MRM-2
____________________
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2 Opinion of the Court 21-11411
Before WILSON, ANDERSON, and HULL, Circuit Judges.
PER CURIAM:
After pleading guilty, Cory Alan Stewart appeals his 360-
month sentence for production of child pornography. Stewart
argues that his sentence is substantively unreasonable. After
careful review, we affirm.
I. FACTUAL BACKGROUND
A. Offense Conduct 1
In 2017, Stewart lived in North Fort Myers, Florida, with
his girlfriend and co-defendant, Marie Antoinette Edwards, and
two other people. Edwards’s 12-year-old son (victim 1) and 11-
year-old daughter (victim 2) lived with their biological father in
Port Charlotte but visited Edwards on two weekends each
month.
One of Stewart’s housemates noticed him becoming
affectionate toward victim 2 and entering the bathroom while
victim 2 was taking a shower. The housemate looked at a tablet
that she and Stewart shared and found messages between
Stewart, Edwards, and victim 2 indicating that Stewart had a
1 The description of Stewart’s offense conduct is drawn from the factual
proffer contained in Stewart’s plea agreement and the unobjected-to facts in
his presentence investigation report.
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21-11411 Opinion of the Court 3
sexual interaction with victim 2, with Edwards’s knowledge. The
housemate reported these messages to authorities.
In an interview with the Department of Children and
Families, victim 2 stated that Stewart touched her under her
underwear with his hand and had put his fingers inside her vagina
on multiple occasions over the past few months. Victim 2 told
Edwards about it, but Edwards did not do anything in response.
Victim 2 stated that Stewart recorded her while she was naked in
a bathtub with her mother.
Based on victim 2’s statements and the messages on the
tablet, law enforcement obtained a warrant to search Stewart’s
cell phone. The phone contained six sexually explicit videos
involving the children, as well as still images of victim 2 standing
nude. The phone contained three videos, created on November
17 and November 18, 2017, showing Edwards performing oral sex
on victim 1 and, in the third video, attempting to have penetrative
sex with victim 1. Stewart recorded all three videos and, in the
third one, gave instructions to Edwards and victim 1 throughout
the recording.
The phone contained three more videos, created on
November 24, 2017, in which Stewart recorded victim 2 while she
was in the shower or bathtub. In the first video, Stewart
masturbates over the toilet while victim 2 is in the bathtub and
Edwards is kneeling next to the bathtub. The video later shows
Stewart putting his hand in the water and rubbing victim 2’s leg
and back, and then placing his hand between her legs. In the
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4 Opinion of the Court 21-11411
second video, victim 2 is standing in the shower and Stewart pulls
the shower curtain back, exposing her. In the third, victim 2 is
laying in the bathtub, and the video focuses on her genitalia.
In an interview with law enforcement, Stewart admitted
that he learned in October 2017 that Edwards had been sexually
abusing her son, victim 1, since he was eight years old. After
Stewart learned about this, Edwards offered to “set Stewart up”
with her daughter, victim 2. Stewart further admitted that he
made videos of Edwards performing oral sex on victim 1, and
those videos were for his and Edwards’s personal gratification.
Stewart also admitted that he gave verbal direction to Edwards
and victim 1 in one of the sexually explicit videos and that he had
shown victim 2 his penis on multiple occasions.
B. Indictment and Guilty Plea
An indictment charged Stewart with two counts of
production of child pornography, in violation of
18 U.S.C.
§ 2251(a), (e) (Counts 1 and 2), and one count of possession of
child pornography, in violation of
18 U.S.C. § 2252(a)(4)(B), (b)(2)
(Count 3). Count 1 corresponded to the videos of victim 1, and
Count 2 corresponded to the videos of victim 2.
Pursuant to a plea agreement, Stewart pled guilty to Count
1, and the government agreed to move to dismiss the remaining
counts at sentencing. The district court found that Stewart was
competent to enter a plea and that his guilty plea was knowing
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21-11411 Opinion of the Court 5
and voluntary. It accepted his plea and adjudicated him guilty of
production of child pornography as charged in Count 1.
C. Presentence Investigation Report (“PSI”)
Stewart’s PSI assigned him a base offense level of 32. His
base offense level of 32 was: (1) increased by two levels because
his offense involved a minor older than 12 but younger than 16;
(2) increased by two levels because his offense involved sexual
contact; (3) increased by two levels because he had care or
supervisory control over the minor victim; (4) increased by two
levels because he was a leader or supervisor in the criminal
activity; (5) increased by five levels because he engaged in a
pattern of activity involving prohibited sexual conduct; and
(6) decreased by three levels for acceptance of responsibility,
resulting in a total offense level of 42.
Stewart’s total offense level of 42 and criminal history
category of IV yielded an advisory guideline range of 360 months
to life. Because the statutory maximum term of imprisonment
for Count 1 was 360 months, Stewart’s advisory guideline term
became 360 months.
The PSI stated that, when Stewart was 11, he accidentally
shot and killed a friend. Stewart spent the following three years
in various juvenile detention and psychiatric facilities. He
attempted suicide while in custody at age 12 and, after a suicide
attempt at a local jail at age 17, he was evaluated and diagnosed
with bipolar disorder and depression. Stewart receives
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6 Opinion of the Court 21-11411
medication for these conditions and advised that he has not
contemplated suicide since age 17. Stewart is now 41 years old.
The PSI further stated that Stewart had a history of
substance abuse, particularly crack cocaine and alcohol, but had
not used drugs in twelve years and had not consumed alcohol in
three years.
Stewart submitted an evaluation report from a clinical
psychologist, Dr. Sheila K. Rapa. The report concluded that
(1) Stewart had been diagnosed with attention deficit
hyperactivity disorder and bipolar disorder, and (2) he likely also
suffered from post-traumatic stress disorder, which had never
been properly diagnosed or treated.
D. Sentencing Hearing
At sentencing, the district court adopted the PSI’s
calculation of Stewart’s 360-month advisory guideline term. The
victims’ biological father was present at the hearing and asked the
government to read a letter he had written about the impact that
Stewart’s and Edwards’s conduct had on the victims. In the letter,
the victims’ father stated that victim 2 was in counseling because
she was having nightmares about what happened to her. The
father stated that victim 2 cried whenever the name “Cory” was
mentioned around her. The victims’ father also stated that victim
1 had problems with touching girls at school because he did not
know that it was inappropriate to do.
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21-11411 Opinion of the Court 7
Next, the district court gave Stewart the chance to allocute.
Stewart stated that he had no excuse for what he did and that he
was not going to say it was because he was addicted to drugs or
made poor choices. Stewart stated that he should have protected
the children when he found out what Edwards was doing with
victim 1, and he did not do what was right. Apparently
addressing the victims’ father, Stewart stated that he “never, ever
molested your daughter” and that, at some point after taking the
videos, he put a stop to what was going on and would not allow
Edwards to be around victim 1 anymore. Stewart said he was
sorry for what he had done.
Next, through counsel, Stewart argued that the district
court should vary downward to a 20-year sentence, arguing that
this case was not as severe as other child pornography cases that
led to a 30-year sentence. Stewart’s counsel referred to the
psychologist’s report and noted Stewart’s troubled background,
including his multiple suicide attempts as a teenager and his drug
addiction. His counsel argued that Stewart had done well while
in custody and on the proper medications. Counsel argued that
Stewart had shown remorse and was capable of rehabilitation.
The government responded that there was no good reason
to vary downward. It argued that, although Stewart was only
charged with the videos made on two dates, the PSI contained
evidence that the abuse was not limited to those occasions.
The district court stated that it considered the sentencing
guidelines and the § 3553(a) factors. It then stated that (1) the
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8 Opinion of the Court 21-11411
main factors here were the seriousness of the offense and
deterrence; (2) Stewart was in a position to do something about
Edwards’s behavior when he found out about it; and (3) “instead
of doing something about it, he chose to video it and
masturbate.” The district court sentenced Stewart to 360 months’
imprisonment, to run consecutive to any sentence that would be
imposed in the state courts.
This is Stewart’s appeal.
II. DISCUSSION
Stewart argues that his 360-month sentence is substantively
unreasonable. 2 We review the reasonableness of a sentence
under a deferential abuse-of-discretion standard employing a two-
step process. United States v. Pugh,
515 F.3d 1179, 1190 (11th Cir.
2008). First, we examine whether the district court committed
any significant procedural error.
Id. Because Stewart claims no
procedural error, we move to the second step of determining
whether his sentence is substantively reasonable in light of the
18
U.S.C. § 3553(a) factors and the totality of the circumstances.3
Id.
2 Stewart’s plea agreement contained a waiver of his right to appeal his
sentence “on any ground,” with certain limited exceptions. government
does not seek to enforce the sentence-appeal waiver in this case. Therefore,
we do not, and need not, address Stewart’s argument that one of the
exceptions to the waiver applies.
3 The § 3553(a) factors include: (1) the nature and circumstances of the
offense and the history and characteristics of the defendant; (2) the need to
reflect the seriousness of the offense, to promote respect for the law, and to
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The party challenging the sentence—here, Stewart—carries the
burden of showing that the sentence is substantively
unreasonable. Id. at 1189.
This Court will vacate a sentence on substantive
reasonableness grounds 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.” United States v. Irey,
612 F.3d
1160, 1190 (11th Cir. 2010) (en banc) (quotation marks omitted).
A district court may attach great weight to one § 3553(a) factor
over others, and the weight it attaches to any specific factor is
committed to its sound discretion. United States v. Rosales-
Bruno,
789 F.3d 1249, 1254 (11th Cir. 2015). When the district
court chooses a sentence within the advisory guidelines range, we
typically expect the sentence to be a reasonable one. United
States v. Docampo,
573 F.3d 1091, 1101 (11th Cir. 2009). That is
especially true of within-range sentences for child sex crimes,
which this Court has called “the most egregious and despicable of
societal and criminal offenses.” United States v. Sarras,
575 F.3d
1191, 1220 (11th Cir. 2009).
provide just punishment for the offense; (3) the need for deterrence; (4) the
need to protect the public from the defendant’s future crimes; (5) the
advisory guidelines range; and (6) the need to avoid unwarranted sentence
disparities.
18 U.S.C. § 3553(a).
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10 Opinion of the Court 21-11411
Stewart’s 360-month sentence is substantively reasonable.
In fashioning the sentence, the district court had discretion to give
weight to the seriousness of the offense and the need for
deterrence over other § 3553(a) factors. See Rosales-Bruno, 789
F.3d at 1254. And, while Stewart argues that it did not consider
his history and characteristics, the record shows that his traumatic
childhood, history of mental illness, and his drug addiction were
all discussed in the PSI, in the psychologist’s report that Stewart
submitted, and at the sentencing hearing. And the district court
was well within its substantial discretion to weigh less heavily
those concerns and to weigh more heavily the seriousness of
Stewart’s offense, including that his conduct caused ongoing
psychological and disciplinary issues for both children. Moreover,
while Stewart argues that his offense was limited to the dates of
the videos, the district court correctly found that the PSI
contained evidence of ongoing abuse, including Stewart’s own
admission that he had shown his penis to victim 2 on “multiple
occasions.” Finally, we note that Stewart’s sentence reflects the
advisory guideline term of 360 months, which is yet another
indicator of substantive reasonableness.
Therefore, Stewart has not shown 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 [this] case.” See Irey,
612 F.3d at 1190 (quotation marks omitted). Because Stewart has
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not shown that his sentence is substantively unreasonable, we
affirm his 360-month sentence.
AFFIRMED.
