United States v. Enrique Guzman

Filing

PER CURIAM OPINION FILED - THE COURT: William Jay Riley, C. Arlen Beam and Lavenski R. Smith (UNPUBLISHED) [4182968] [13-3068]

United States Court of Appeals
For the Eighth Circuit
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No. 13-3068
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Enrique Guzman
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Des Moines
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Submitted: May 12, 2014
Filed: August 6, 2014
[Unpublished]
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Before RILEY, Chief Judge, BEAM and SMITH, Circuit Judges.
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PER CURIAM.
Enrique Guzman challenges the substantive reasonableness of his 80-month
sentence for possession of child pornography, in violation of 18 U.S.C.

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§ 2252(a)(4)(B). He also challenges the district court's1 application of U.S.S.G.
§ 2G2.2(b)(3)(B)'s five-level enhancement for distributing child pornography in return
for, or in expectation of, receipt of a thing of value. We affirm.
I. Background
Enrique Guzman pleaded guilty to one count of possession of child
pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). Guzman used LimeWire, a
peer-to-peer file-sharing program, to access and download a total of 114 videos and
7 images of child pornography.
In calculating the applicable Guidelines range, the district court applied a
five-level enhancement for distributing in return for, or in expectation of, receipt of
a thing of value. See U.S.S.G. § 2G2.2(b)(3)(B). The court concluded that the
government carried its burden of demonstrating that Guzman knew and understood
the distributive qualities of a file-sharing program, and it therefore demonstrated that
Guzman knowingly used the program to both access and distribute child pornography.
The government's evidence on this point was the presence of two other file-sharing
programs on the computer and Guzman's admission that he used LimeWire to access
and download music and child pornography.
The application of the enhancement resulted in an offense level of 33.
Combined with Guzman's criminal history category of I, this yielded a Guidelines
range of 135–168 months. Because the statutory maximum sentence for a violation
of § 2252(a)(4)(B) is 120 months, his sentencing range became 120 months. Without
the five-level enhancement, Guzman would have received a two-level enhancement
for simple distribution, yielding an offense level of 30 and a Guidelines range of
97–121 months' imprisonment.

1

The Honorable James E. Gritzner, Chief Judge, United States District Court
for the Southern District of Iowa.
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At Guzman's sentencing hearing, during discussion of the five-level
enhancement, Guzman's counsel stated:
I argued for a two-level enhancement for distribution [rather than the
five-level enhancement]. Whether we reach that through a guideline
correction or alteration or via a variance, for our purposes, in the big
scheme of things, it doesn't matter which approach the Court would take
there.
The court acknowledged that "this is a somewhat academic issue under the
circumstances of this particular case because the guideline calculation ends up above
the statutory maximum in this case, and therefore we're discussing a legal issue here
that ultimately may not have that much impact on Mr. Guzman." The court concluded
that "the record here is thin enough that there is some consideration as to whether
some variance is appropriate to overcome the [five-level] enhancement that was
applied there." The court then varied downward to impose a sentence of 80 months—a
sentence below even the low end of a range applying his requested two-level
enhancement.
II. Discussion
On appeal, Guzman challenges the application of the five-level enhancement
and challenges his sentence as substantively unreasonable.
We need not review Guzman's challenge to the sentencing enhancement
because he has waived any error. During the sentencing hearing, Guzman invited the
court to remedy the alleged sentence inflation caused by the five-level enhancement
either by amending the Guidelines calculation or with a downward variance. The court
chose the latter. Guzman cannot complain on appeal that he received exactly what his
lawyer requested. See United States v. Thompson, 289 F.3d 524, 526 (8th Cir. 2002).

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"We review the substantive reasonableness of a sentence under a deferential
abuse-of-discretion standard." United States v. Green, 691 F.3d 960, 966 (8th Cir.
2012) (citation omitted). Guzman attacks the substantive reasonableness of his
sentence on the grounds that the Guidelines for child pornography are excessive and
are "notorious for enhancements that promote statutory maximum or near maximum
sentencing in run-of-the-mill cases." We have consistently rejected such challenges,
and we do so here. See United States v. Pappas, 715 F.3d 225, 229 (8th Cir. 2013).
Furthermore, Guzman's sentence would fall significantly below the applicable
Guidelines range regardless of the enhancement imposed. "[I]t will be the unusual
case when we reverse a district court sentence—whether within, above, or below the
applicable Guidelines range—as substantively unreasonable." United States v.
Feemster, 572 F.3d 455, 464 (8th Cir. 2009) (en banc). This is not the "unusual case."
This is especially true where, as here, the sentence imposed is substantially below the
lowest range argued for by the defendant.
III. Conclusion
Accordingly, the judgment of the district court is affirmed.
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