USA v. Juan Roman
Filing
Opinion issued by court as to Appellant Juan Roman. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.
Case: 15-13187
Date Filed: 03/14/2016
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-13187
Non-Argument Calendar
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D.C. Docket No. 1:14-cr-20662-JLK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN ROMAN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 14, 2016)
Before TJOFLAT, HULL and WILLIAM PRYOR, Circuit Judges.
PER CURIAM:
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Juan Roman appeals his total sentence of 300 months’ imprisonment
imposed after pleading guilty to one count of receipt of a visual depiction of a
minor engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(2),
and two counts of possession of a visual depiction of a minor engaged in sexually
explicit conduct, in violation of 18 U.S.C. § 2252(a)(4)(B).1 Roman argues that
the 300 months’ term is substantively unreasonable because the district court
committed an error of judgment when weighing the sentencing purposes listed in
18 U.S.C. § 3553(a) and imposed a sentence greater than necessary to comply with
those purposes.
Roman relies on two cases to illustrate his argument. The first case is
United States v. Beasley, 562 Fed.Appx. 745 (11th Cir. 2014), cert. denied, 135 S.
Ct. 186 (2014). He contends that his offense is similar to that of the defendant in
Beasley with regard to the number of images of child pornography involved. As
the defendant in Beasley was granted a downward variance due to mitigating
factors, Roman believes he is entitled to a downward variance for the same reason.
The second case is United States v. Dean, 635 F.3d 1200 (11th Cir. 2011). The
district court categorized him as a “hands-on” offender and imposed a sentence
1
The statutory sentence range for the 18 U.S.C. § 2252(a)(2) offense was a minimum
prison term of five years and a maximum term of 20 years. 18 U.S.C. § 2252(b)(1). The district
court sentence Roman to the maximum term, 240 months. The statutory sentence range for the
two 18 U.S.C. § 2252(a)(4)(b) offenses was zero to 20 years’ imprisonment. The court
sentenced Roman to concurrent terms of 60 months, to run consecutively to the 240 months’
sentence.
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similar to the sentence Dean received despite the fact that his conduct did not
approach the length and level of sexual abuse involved in Dean.
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, 169 L. Ed. 2d 445 (2007). The district court must impose a sentence
“sufficient, but not greater than necessary” to comply with the sentencing purposes
listed in § 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, and protect the public from the defendant’s future criminal conduct. See
18 U.S.C. § 3553(a)(2). In addition to these purposes, the court must also consider
the nature and circumstances of the offense, the history and characteristics of the
defendant, the kinds of sentences available, the applicable guideline range, the
pertinent policy statements of the Sentencing Commission, the need to avoid
unwarranted sentencing disparities, and the need to provide restitution to victims.
Id. § 3553(a)(1), (3)-(7).
Before we review the substantive reasonableness of a sentence, we must be
satisfied that the sentence is procedurally reasonable---that, for example, the
district court properly calculated the sentence range under the Guidelines,
considered the § 3553(a) purposes of sentencing, and adequately explained the
sentence imposed. Gall, 552 U.S. at 51, 128 S. Ct. at 597. Roman does not
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question the procedural reasonableness of his sentences (and we discern no basis
for doing so); we therefore move to the issue of whether his total sentence of 300
months is substantively unreasonable. We consider whether it is unreasonable in
light of the totality of the circumstances. Id.
In resolving the reasonableness issue, we are mindful that the weight a
district court gives the § 3553(a) sentencing factors, including the sentencing
purposes listed in subsection (a)(2) and the need to avoid unwarranted sentencing
disparity indicated in subsection (a)(6), is committed to the court’s sound
discretion, United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007); that there is a
“range of reasonable sentences from which the district court may choose,” United
States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005); and that a sentence within the
Guidelines sentence range is ordinarily expected to be reasonable. United State v.
Hunt, 526 F.3d 739, 746 (11th Cir. 21008). At the end of the day, we will set aside
a sentence only if left with the firm conviction that the district court committed a
clear error of judgment in weighing the § 3553(a) purposes and arrived at a
sentence lying outside the range of reasonable sentences warranted by the facts of
the case. United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc).
Having reviewed the record and the parties’ briefs, we conclude that
Roman’s total sentence of 300 months is not substantively unreasonable. We are
not persuaded by his argument that the sentences imposed in Beasley and Dean
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demonstrate that, in his case, the district court made a clear error of judgment and
imposed a total sentence that is beyond the range of reasonable sentences the court
could have handed down.
In Beasley¸the defendant Beasley’s computers contained “267 movies and
6,405 images of child pornography” and “he admitted that he had collected images
and videos of child pornography since the early 1990s and had over 40,000 child
pornography images.” 562 Fed.Appx. at 746-47. Beasley’s Guidelines sentence
range was 151 to 188 months’ imprisonment.2 The district court granted Beasley’s
request for a downward variance and imposed a sentence of 115 months.
The district court listed its reasons for the variance, including the nature and
circumstances of the offense, Beasley's history and characteristics, including
his: (1) mental health issues; (2) exposure to his father who was a negative
influence; (3) difficult teenage years; (4) depression; (5) voluntarily
committing himself three times for suicidal ideation; (6) “selfrehabilitation”; (7) low risk of recidivism documented in Dr. Cohen's report;
and (8) lack of criminal history, particularly the lack of “history of
inappropriate contact offenses, particularly contact offenses with minors.”
In his case, Roman transmitted and received child pornography over the
internet through ARES, a peer-to-peer file-sharing network. His ARES search
history, as disclosed by his laptop computer and hard drive, showed that he had
conducted over 1,000 searches, predominantly seeking child pornography. His
laptop contained over 50 and his hard drive over 500 video files, with titles
2
The sentence range resulted from a total offense level 34 and a criminal history
category of I.
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suggestive of child pornography, making him accountable for a total of 41,250
images. Roman made several of the child pornography videos himself in addition
to making hundreds of files that others could download. He set up a hidden
camera in his bathroom to film visitors, including his children, undressed. He hid
another camera in his kitchen, which, among other things, showed him lifting up a
six-year old girl several times, grabbing her buttocks and touching her in her
genital area. He admitted making the videos on these cameras for his sexual
gratification. The Guidelines prescribed a prison sentence of between 262 to 327
months.3 Roman requested a downward variance from this sentence range for the
reasons his attorney summarized in the sentencing memorandum he presented to
the district court.
Mr. Roman is a fifty seven year old man, with a long term employment
history and an enviable record of community service, who cares for his
medically infirm and elderly parents, and is presently able to become
gainfully employed to reimburse three identified victims of computer
pornography in a to-be-determined restitution amount. Also, Mr. Roman has
never been arrested or accused of a crime. Additionally, he has strong family
and community support, has undergone three separate psycho-sexual
examinations and determined to be a low risk of recidivism and amenable
to treatment. Mr. Roman has admitted his crime, recognized he made a
terrible mistake and requests treatment. Mr. Roman wishes to become a
productive member of society again. For these reasons the defense
recommends Mr. Roman be sentenced to the mandatory term of five years
imprisonment, followed by home detention with electronic monitoring and
supervised release.
3
The sentence ranged resulted from a total offense level 39 and a criminal history
category of I.
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Doc. 90 at 1. After entertaining the parties’ arguments on the variance issue, the
district court denied the motion in these words:
All of the carefully-submitted records on behalf of the defendant regarding
his background, his history as a child, these other matters, the stressful
matters that he was undergoing at periods of time in his life, his excellent
record as a police officer, all of that is outweighed by the other factors in
Section 3553(a) -- (2)(a), regarding the seriousness of this offense, respect
for the law, the need for deterrence, the need to protect the public.
Doc. 110 at 87-88.
In Beasley and here, the district court carefully considered the § 3553(a)
sentencing factors. Implicit in the Beasley sentence is the notion that the
defendant’s mitigating circumstances were due more weight than the need for
punishment and general and specific deterrence. See 187 U.S.C. §
3553(a)(2)(1),(2) and (3). Both sentences were within the range of reasonable
sentences warranted by the facts of the case. As such, Roman’s total sentence was
not disparate when compared to Beasley’s sentence.
Nor do we find an unwarranted disparity when Roman’s sentence is
compared to the sentence imposed in Dean. Roman cites Dean as an example of a
hands-on” sex offender whose acts were far worse than his. The fact that Dean
may molested a child for a longer period of time and more often than he did does
not render his total sentence disparate. True, his sentence was close to Dean’s, 300
months versus 360 months, but Dean’s Guidelines sentence range was life
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imprisonment. The district court sentenced him to 360 months because that was
the statutory maximum.
Roman has not shown that his total sentence is unreasonable. The judgment
of the district court is, accordingly,
AFFIRMED.
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