USA v. Mitchell Lichtman

Filing

Opinion issued by court as to Appellant Mitchell Lichtman. 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.

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14795
________________________
D.C. Docket No. 1:15-cr-20124-JLK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MITCHELL LICHTMAN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 31, 2017)
Before MARCUS, JILL PRYOR, and SILER, * Circuit Judges.
PER CURIAM:

*

Honorable Eugene Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by
designation.

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Mitchell Lichtman appeals his 151-month total sentence, which was at the
bottom of the advisory guideline range, after pleading guilty to one count of receipt
of child pornography in violation of 18 U.S.C. §§ 2252(a)(2), (b)(1) and one count
of possession of child pornography shipped or transported in and affecting
interstate commerce and involving a prepubescent minor in violation of 18 U.S.C.
§§ 2252(a)(4)(B), (b)(2). On appeal, Lichtman argues that his sentence was
procedurally and substantively unreasonable. Lichtman contends that the district
court erred procedurally by presuming that a Guidelines sentence was a reasonable
sentence, by failing to consider all of the 18 U.S.C. § 3553(a) factors, by
inadequately explaining Lichtman’s sentence, and by enhancing his sentence for
distributing child pornography. Lichtman also argues that the district court failed
to adequately consider a report from the Sentencing Commission discussing the
child pornography Guidelines. Finally, Lichtman argues that his sentence was
substantively unreasonable given the particular circumstances of his case. After
thorough review, we affirm.
I.
This court reviews the reasonableness of a sentence under the deferential
abuse-of-discretion standard of review. Gall v. United States, 552 U.S. 38, 51
(2007). We must first ensure that the district court did not improperly calculate
the Guidelines range, treat the Guidelines range as mandatory, select a sentence
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based on clearly erroneous facts, inadequately explain the chosen sentence, or
commit any other significant procedural error. Id. In imposing a particular
sentence, the court must also consider the factors found in 18 U.S.C. § 3553(a),
which include 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. See § 3553(a)(1), (3)–(7). But if the facts of a matter are
straightforward, the explanation of the sentence need not be detailed. Rita v.
United States, 551 U.S. 338, 359 (2007).
As long as a district court has considered the § 3553(a) factors, it need not
discuss them individually. United States v. Flores, 572 F.3d 1254, 1270 (11th Cir.
2009) (per curiam). Moreover, the trial court need not expressly say that it has
considered the § 3553(a) factors if the record indicates that the factors were, in
fact, considered. United States v. Dorman, 488 F.3d 936, 944 (11th Cir. 2007).
Similarly, the fact that a district court does not discuss mitigating evidence does
not mean it has not considered it. United States v. Amedeo, 487 F.3d 823, 833
(11th Cir. 2007). However, a court may abuse its discretion if it (1) fails to
consider relevant factors that were due significant weight, (2) gives an improper or
irrelevant factor significant weight, or (3) balances the factors unreasonably and so
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commits a clear error of judgment. United States v. Irey, 612 F.3d 1160, 1189
(11th Cir. 2010) (en banc).
If, however, an error is not timely objected to, we review it only for plain
error. United States v. Turner, 474 F.3d 1265, 1275 (11th Cir. 2007). For there to
be plain error, there must be error, it must be plain, and it must affect the party’s
substantial rights. Id. at 1276. To be plain, an error must be “clear” or “obvious.”
United States v. Olano, 507 U.S. 725, 734 (1993). For an error to affect substantial
rights, the moving party must show that but for the error there is a reasonable
probability the outcome of the case (here the sentence) would have been different.
United States v. Patterson, 595 F.3d 1324, 1326 (11th Cir. 2010). If all three
criteria are met, we may exercise our discretion to notice a forfeited error, but only
if it seriously affects the public reputation, fairness, and integrity of judicial
proceedings. Turner, 474 F.3d at 1276.
Lichtman raises several challenges to the procedural reasonableness of his
sentence. Lichtman first argues that the district court erred in presuming that the
Guidelines were reasonable. In ruling on his motion for a variance, the district
court stated that “[t]he case law, of course, requires the Court to commence with
the assumption that the [G]uidelines are reasonable and that they are advisory only,
but that the Court should give consideration to the ranges that are set by the
Sentencing Guidelines Commission.” That was error. District courts are forbidden
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from presuming that the sentencing Guidelines range is reasonable. Nelson v.
United States, 555 U.S. 350, 352 (2009) (per curiam). However, because
Lichtman did not specifically object, the error is subject to plain error review.
Turner, 474 F.3d at 1275. The district court’s error was arguably “plain,” but there
is no reasonable probability that the outcome of the case would have been different
but for the offending comment. See id. at 1276.
To establish that an error affects the defendant’s substantial rights, Lichtman
must show some contemporaneous indication that the district court would have
varied downward in the absence of the presumption. See Dell v. United States,
710 F.3d 1267, 1278 (11th Cir. 2013). The record forecloses this argument.
Plainly, the district court judge knew it had discretion to vary downward on the
basis of the precise arguments Lichtman had raised -- indeed, the court
acknowledged that it had done just that in a prior similar case. But since that case,
as the district court explained, “[t]he aspect of the incredible harm that this type of
crime has presented to the public and the wellbeing of the people and victims has
become a lot more clear[].” This exchange strongly suggests that the district court
rejected Lichtman’s arguments on their merits. There is no evidence that any
presumption played any role, and so Lichtman fails to establish plain error. Again,
the burden of proof in plain error analysis rests with the defendant. See United
States v. Rodriguez, 398 F.3d 1291, 1300 (11th Cir. 2005) (holding that “the
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burden truly is on the defendant to show that the error actually did make a
difference”).
Lichtman also suggests that the district court erred in failing to hold the
government to its burden to establish that Lichtman understood peer-to-peer
networking software before applying the two-level distribution enhancement found
in § 2G2.2(b)(3)(F) for the distribution of child pornography. Although Lichtman
claims that the enhancement requires a defendant to know that they are making
child pornography available to others, our caselaw is to the contrary. See United
States v. Creel, 783 F.3d 1357, 1358 (11th Cir. 2015) (holding that the
enhancement for “distribution of child pornography does not require an offender to
know that he made child pornography accessible to others”) (citations omitted).
The enhancement was properly applied.
Moreover, even if knowledge were required, “a party may not challenge as
error a ruling . . . invited by that party.” United States v. Silvestri, 409 F.3d 1311,
1327–28 (11th Cir. 2005) (quotation omitted). In his motion for a variance,
Lichtman conceded that “[t]he mere fact that he was on a peer-to-peer network
automatically qualifies the Defendant for distribution.” When a defendant invites
error by agreeing that a particular course of action is appropriate, we are precluded
from reviewing that claim. United States v. Brannan, 562 F.3d 1300, 1306 (11th
Cir. 2009).
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The district court’s consideration of the sentencing factors enumerated by
Congress in § 3553(a) was also sufficient. While Lichtman complains that the trial
court did not adequately consider the § 3553(a) factors he claims justify a
downward variance, the record indicates that the court considered Lichtman’s
arguments during the sentencing hearing. Although the district court did not
mention the specific § 3553(a) factors behind Lichtman’s arguments, it did
consider the facts behind them. Under our caselaw, this is sufficient. See Dorman,
488 F.3d at 944. And the district court’s decision not to discuss each and every
piece of mitigating evidence does not establish that it failed to consider that
evidence. Amedeo, 487 F.3d at 833. The court’s discussion of the defense’s
arguments that Lichtman’s strong family support, his immediate cooperation, and
his role in caring for his mother warranted a variance was more than enough to
establish that the court properly considered the § 3553(a) factors.
Finally, the district court’s explanation of its sentence was also permissible.
This case was conceptually simple, and the district court considered the evidence
and arguments. A brief statement of the reasons for imposing a sentence is
sufficient. Rita, 551 U.S. at 359; see also Irey, 612 F.3d at 1195. The district court
was not required to give a more lengthy explanation.

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II.
Lichtman’s argument that the district court erred by failing to consider a
report from the U.S. Sentencing Commission discussing the child pornography
Guidelines also is unavailing. See United States Sentencing Commission, Report
to Congress: Federal Child Pornography Offenses (Dec. 2012) (“the Report”)
available at http://www.ussc.gov/sites/default/files/pdf/news/congressionaltestimony-and-reports/sex-offense-topics/201212-federal-child-pornographyoffenses/Full_Report_to_Congress.pdf . We have previously rejected attacks on
the Sentencing Guidelines premised on this very report. See, e.g., United States v.
Cubero, 754 F.3d 888, 900 (11th Cir. 2014) (holding that the Report “does not
change the statutory sentencing scheme, the applicable sentencing guidelines, or
the binding precedent about § 2G2.2 in this Circuit”); see also United States v.
Carpenter, 803 F.3d 1224, 1235–36 (11th Cir. 2015).
We recently made clear that challenges to the validity of the Guidelines
based on the Report are a “non-starter.” Carpenter, 803 F.3d at 1235–36. We also
made it clear that while a district court may consider the Report in determining a
sentence, it is not required to do so. Cubero, 754 F.3d at 900. The Report does not
limit the district court’s discretion in determining what weight to assign to each §
3553(a) factor, nor does it require the district court to vary from § 2G2.2’s
guideline range. Id. Finally, we have already rejected the claim that our treatment
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of the Report creates unwarranted sentencing disparities. Carpenter, 803 F.3d at
1235–36.
Lichtman also offers the novel procedural argument that the district court
has a heightened duty to address the Report because it qualifies as a “policy
statement” under § 3553(a)(5). But this argument is raised with us for the first
time on appeal and is accordingly subject to plain error review. United States v.
Sentovich, 677 F.2d 834, 837 (11th Cir. 1982). Upon review, we do not believe
that there is a reasonable probability that the district court’s decision would have
been different but for the claimed error. Turner, 474 F.3d at 1276. Evidence of the
alleged flaws in the child pornography Guidelines was presented to the district
court both through Lichtman’s arguments in his sentencing memorandum and the
sentencing hearing, as well as through the expert testimony he presented. The
defendant has failed to satisfy his burden of establishing that the additional
consideration of the Report would likely have affected the sentence imposed by the
district court.
III.
Finally, Lichtman argues that his sentence was substantively unreasonable.
According to Lichtman, the district court arrived at a sentence that was
“unnecessarily harsh” by overweighing the harm to the victims, underweighing his
own mitigating qualities, and affording too much weight to flawed Guidelines. As
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the party challenging the sentence, Lichtman bears the burden of showing that the
sentence is unreasonable in light of the entire record and the § 3553(a) factors.
United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). “Although we do
not automatically presume a sentence within the [G]uidelines range is reasonable,
we ordinarily expect a sentence within the Guidelines range to be reasonable.”
United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008) (quotation omitted,
alteration adopted). Ultimately, we may vacate a defendant’s procedurally proper
sentence 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. McBride, 511 F.3d 1293, 1297–98 (11th
Cir. 2007) (quotation omitted).
Lichtman’s 151-month, bottom-of-the-Guidelines sentence is substantively
reasonable. See Gall, 552 U.S. at 51. We recognize that 151 months
imprisonment is a harsh sentence. But possession and receipt of child pornography
are harmful crimes. See, e.g., United States v. Wayerski, 624 F.3d 1342, 1354–55
(11th Cir. 2010) (holding that it was not unreasonable for the district court to
consider the defendants’ child pornography offenses to be serious and deserving of
a significant sentence). Indeed, we have emphasized the harm inflicted on the
victims of child pornography “time and again.” Carpenter, 803 F.3d at 1235. This
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harm comes first from the initial abuse -- which demand from consumers like
Lichtman incentivizes -- and is compounded by the continued viewing of images
depicting the worst moments of these children’s lives. See, e.g., Paroline v. United
States, 134 S. Ct. 1710, 1722 (2014) (noting that “the victim’s costs of treatment
and lost income resulting from the trauma of knowing that images of her abuse are
being viewed over and over are direct and foreseeable results of child-pornography
crimes, including possession”); United States v. Williams, 553 U.S. 285, 307
(2008) (noting the harm caused to children by the proliferation of child
pornography via the internet); United States v. Pugh, 515 F.3d 1179, 1195–97
(11th Cir. 2008) (discussing the harms worked by the continued trade in
pornographic images of children).
The degrading material presented in this case fits the bill. Among the 620
videos and 10,200 image files found in Lichtman’s possession were the following:
• A folder entitled [pthc][1] 1 8yo Jenny Pics - 2012:, which included two files,
each containing an image depicting a naked preteen female tied up while
lying on a bed and exposing her genitals;
• A file titled (Pthc) 6yo rape and scream (Gay).mpg, which contained a video
file depicting, in part, an adult male performing oral sex on a naked preteen
boy;
• A file titled Babyshivid_Comp_Part_l-mpg, which contained a video file
depicting multiple adult males engaging in intercourse and sexual activity
with a preteen/toddler female;

1

PTHC is an acronym for pre-teen hardcore.
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• A file titled PTHC Ultra Hard Pedo Child Porn Pedofilia (New)
o6lchildfugga darkcollection kidzilla hussyfan lolitaguy childlover1.jpg,
which contained an image file depicting a naked preteen female lying on a
bed exposing her genitals with an unknown individual pointing a knife at the
preteen female and the words “cut m slut hurt me” painted on her body; and
• A file titled Mafiasex.Ru_Children_Kids_Hard_000303_Childporn_Family
_4yo_Jackoff_Dad_Illegal_Preeten_Underage_Lolita_Kiddy_Incest_Little_
Girl_Rape_Sex.jpg, containing an image file depicting a female toddler
holding the penis of an adult male.
Moreover, there was undisputed evidence in the record that the defendant had
expressly sought out this material. His search history included searches for
“Toddler girl with no Panties,” “Toddler thong,” “Toys r us toples,” “pthc,” and
“childlike sex dolls.” And finally, there was the troubling evidence that the
defendant had sought out and obtained employment at Toys R Us and Babies R Us.
On this ample record, it was not unreasonable for the district court to weigh
heavily the seriousness of the offense and the need to protect the public from
further crimes by the defendant. § 3553(a)(2)(A), (C).
A strong consideration in weighing the seriousness of these crimes is that
“[t]hose who receive and exchange child pornography create a demand that
influences the production of the pornography and the attendant physical and
emotional injury to children.” Wayerski, 624 F.3d at 1354. That demand “harms
and debases the most defenseless of our citizens.” Williams, 553 U.S. at 307. This
harm is relevant to the need for the sentence imposed to reflect the seriousness of
the crime, to provide just punishment, to afford adequate deterrence, and to protect
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the public. See 18 U.S.C. § 3553(a)(2)(A)–(C). As our colleagues on the Seventh
Circuit have explained:
Young children were raped in order to enable the production of the
pornography that the defendant both downloaded and uploaded -- both
consumed himself and disseminated to others. The greater the
customer demand for child pornography, the more that will be
produced. Sentences influence behavior, or so at least Congress
thought when in 18 U.S.C. § 3553(a) it made deterrence a statutory
sentencing factor. The logic of deterrence suggests that the lighter the
punishment for downloading and uploading child pornography, the
greater the customer demand for it and so the more will be produced.
United States v. Goldberg, 491 F.3d 668, 672 (7th Cir. 2007) (citations omitted).
We cannot say that it was error for the district court to weigh heavily the
seriousness of this offense and the need for the sentence to send a general
deterrence message.
Lichtman argues, nevertheless, that the district court should have afforded
more weight to the mitigating evidence on the other side of the scale. He was the
primary caregiver for his ailing mother, had no criminal history, and had
cooperated fully with the authorities. See § 3553(a)(1). He also presented
testimony from an expert that he was a low recidivist risk thereby reducing the
need for the sentence to incapacitate him so as to protect the public from further
similar crimes. See § 3553(a)(2)(C). But the weight given to any specific
§ 3553(a) factor is committed to the sound discretion of the district court. United
States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007). In the face of the large amount
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of child pornography found on the defendant’s devices -- over 600 videos and
10,000 images -- and the fact that those videos and images were violent and
included images of children as young as toddlers, we hold that the district court did
not abuse its discretion in determining Lichtman’s sentence. Clay, 483 F.3d at
743. Twelve and a half years is a significant sentence. And Lichtman presented
evidence that suggested that he had redeeming qualities. But we cannot say that
the mitigation evidence was so overwhelming, and the harm to the victims was so
underwhelming, that the district court made a clear error of judgment in imposing a
sentence of 151 months.
AFFIRMED.

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