                Case: 16-15170       Date Filed: 07/26/2018       Page: 1 of 25


                                                                   [DO NOT PUBLISH]




                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 16-15170
                               ________________________

                          D.C. Docket No. 1:15-cr-20019-JAL-1



UNITED STATES OF AMERICA,

                                                                   Plaintiff - Appellee,

                                             versus

RALPH ALPIZAR,

                                                                   Defendant - Appellant.

                               ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            ________________________

                                        (July 26, 2018)

Before WILLIAM PRYOR and JILL PRYOR, Circuit Judges, and RESTANI, ∗
Judge.

       ∗
          Honorable Jane A. Restani, Judge for the United States Court of International Trade,
sitting by designation.
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PER CURIAM:

       Ralph Alpizar was convicted of three counts of receipt of child pornography,

in violation of 18 U.S.C. § 2252(a)(2) and (b)(1), and three counts of possession of

child pornography, in violation of 18 U.S.C. § 2252(a)(4) and (b)(2), after law

enforcement officers discovered that he was downloading and sharing child

pornography files over the internet. The district court sentenced Alpizar to the

statutory maximum for each count, to be served consecutively, resulting in a total

sentence of 1,440 months’ imprisonment. On appeal, Alpizar argues that his

sentence is procedurally and substantively unreasonable. After careful review, and

with the benefit of oral argument, we affirm.

                                  I.      BACKGROUND

A.     Factual Background

       In March 2014, a Special Agent with the Federal Bureau of Investigation

(“FBI”) discovered that an IP address was sharing child pornography through a

peer-to-peer file sharing program called ARES. 1 The IP address was registered to

Alpizar at an address in Miami. After surveilling and researching the address, the

agent determined that Alpizar lived there with his father, Rafael Alpizar.




       1
         ARES users can share files with other users by placing files in a shared folder within
their own ARES account.
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      Law enforcement officers executed a search warrant at Alpizar’s home

shortly before 6:30 in the morning on July 23, 2014. Alpizar’s father answered the

door after the officers knocked and announced themselves continually for five

minutes. He told the officers that Alpizar was inside the house in his bedroom.

The officers proceeded inside the house and began to shout for Alpizar. Two to

three minutes later, Alpizar emerged from a bedroom. The officers searched the

bedroom, which contained a computer with two monitors. The search of the room

revealed emails addressed to Alpizar and diplomas—including one from the Dade

County School Board indicating that Alpizar had met the requirements set by the

office of vocational adult, career, and community education for a certificate in

electronics technology—in his name. The ARES program was running on the

computer, and the computer’s “recycle bin” was open and had been emptied. The

officers also found two hard drives in a spare bedroom. One of those hard drives

was labeled “R” and “my pics.” Doc. 155 at 121. 2

      Although Alpizar was told that he was not under arrest, he agreed to go to

the police station to make a statement. Initially he denied knowing what a file

sharing program was, but he later admitted that he used file sharing programs to

download music. Alpizar also admitted that the hard drives found in the spare

bedroom were his. Eventually, he initialed a formal statement acknowledging that


      2
          Citations to “Doc #” refer to the numbered entries on the district court docket.
                                                  3
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“images of child pornography were on his computer, [a] personally built black PC

in his room under his desk which, in fact, he downloaded over the last couple of

years from ARES.” Doc. 154 at 104. The statement went on to say that “Ralph

takes full responsibility and assures that this will never happen again, downloading

[child pornography].” Id.

      A forensic team examined the computer from Alpizar’s room. It contained

only one specially created user account, named “Ralph.” The ARES account on

the computer was registered to Ralph Alpizar under the email address

ralphrestoration@comcast.net. The search history in the ARES program running

on the computer revealed that someone had searched for multiple child

pornography terms. The FBI also found thousands of videos and images on the

computer, including many with file names indicative of child pornography.

      The FBI’s forensic search of the computer revealed that on the morning of

the search, items had been placed in the computer’s recycle bin and then deleted;

some of those items had been in the shared folder before deletion. At least one file

had been deleted at 6:28 a.m., after law enforcement began knocking on the door

but before Alpizar left the bedroom.

      The forensic team also examined the hard drives found in the spare

bedroom, both of which contained child pornography. The files had been




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downloaded onto the hard drives and placed in a folder that had been manually

created. On one of the hard drives, the user account was identified as “Ralph.”

      Despite this evidence, Alpizar was not arrested after the first search. Several

months later, a new FBI Special Agent assigned to Alpizar’s case reviewed the

evidence and decided to obtain an arrest warrant for Alpizar. Before doing so, the

agent decided to check to see if Alpizar still was sharing child pornography over

the internet. The agent detected that Alpizar’s IP address again was sharing child

pornography. Law enforcement executed a second search warrant in January 2015.

      During the second search, Alpizar told law enforcement that he was the only

one in the house who used the internet and that his father did not use the

computers. He admitted that he had purchased a new hard drive for his desktop

after the FBI had seized the old one and that he had installed ARES on it.

      Law enforcement conducted a forensic examination of the new hard drive,

named “Ralph-PC.” Doc. 148 at 15. Fax cover sheets with Alpizar’s name on

them and emails to “Ralph Restoration” were found on the computer.

DriveScrubber, a program that wipes the hard drive clean to make deleted data

unrecoverable, had been installed on the computer. In addition, a user had disabled

the computer’s ability to create shadow copies of files that had been deleted.

ARES had been downloaded; once again the registered user was Ralph Alpizar and




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the associated email was ralphrestoration@comcast.net. Numerous search terms

associated with child pornography had been entered into ARES.

      In total, counting only the files with titles strongly indicative of child

pornography, the FBI estimated that between December 2010 and January 2015

Alpizar had downloaded 1,781 child pornography videos and images using ARES.

Alpizar was arrested.

B.    Procedural Background

      In February 2015, Alpizar was charged via superseding indictment with

three counts of receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2)

and (b)(1), and three counts of possession of child pornography, in violation of 18

U.S.C. § 2252(a)(4) and (b)(2). Alpizar’s trial was set to begin June 15, 2015. On

June 4, 2015, however, his attorney requested a continuance because Alpizar had

checked himself into a hospital the month before to receive treatment for mental

health issues. Alpizar left the hospital the next day on June 5, 2015.

      The district court ordered a competency hearing and reset the trial for

August. But on the day of the hearing, Alpizar’s counsel moved for another

continuance because Alpizar again had admitted himself into a hospital the week

before. The district court ordered Alpizar to surrender himself to the federal

detention center for a psychological exam. In September, the parties stipulated that

Alpizar was competent to proceed, and the district court set a trial date for October.


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      On the day the trial was set to begin, however, Alpizar’s attorney informed

the district court that Alpizar had been hospitalized the day before. The attorney

later told the court that Alpizar had lost his memory, and the court granted a

motion for a competency hearing. In April 2016, at the competency hearing,

Alpizar’s attorney told the district court that she had had no communication from

Alpizar and that when she spoke with him, he seemed not to recognize her or know

the charges against him. The district court, nevertheless, found Alpizar competent

to proceed to trial. The court based its decision on an expert report prepared by

professionals at the Mental Health Unit of Federal Medical Center-Butner, which

stated that Alpizar’s “only diagnosis [was] malingering” and explained that “[h]is

current presentation [was] the result of a volitional attempt to present as

incompetent to stand trial.” Doc. 147 at 6. Trial began later that month.

      During the trial, the parties stipulated that child pornography had been

downloaded onto the computers in Alpizar’s room and also had been found on the

two spare hard drives and on the black homemade computer in Alpizar’s room that

had been seized during the first search. The remaining issues at trial were whether

Alpizar was the person who had been downloading and possessing child

pornography and, if so, whether he had done so knowingly. The jury convicted

Alpizar on all counts, and he proceeded to sentencing.




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       Alpizar’s base offense level was 22 under United States Sentencing

Guideline § 2G2.2(a)(2). His presentence investigation report (“PSI”)

recommended multiple enhancements, resulting in a total offense level of 43. As

relevant to this appeal, Alpizar objected to the following enhancements: pattern of

activity involving the sexual abuse or exploitation of a minor, under U.S.S.G.

§ 2G2.2(b)(5), for sexually abusing his former stepdaughter; obstruction of justice,

under U.S.S.G. § 3C1.1, for attempting to delete child pornography files when the

police arrived during the first search and for feigning mental illness, which delayed

the trial and cost the government substantial resources; distribution of child

pornography, under U.S.S.G. § 2G2.2(b)(3)(F), for sharing child pornography files

through ARES; and use of a computer to receive and possess child pornography,

under U.S.S.G. § 2G2.2(b)(6).

       At Alpizar’s sentencing hearing the government called N.J., Alpizar’s

former stepdaughter.3 N.J. was 28 years old on the date of the hearing. She

testified to the following: When she was nine years old, while Alpizar was married

to her mother, he would come into her bedroom, give her back rubs, pull off her

underwear, and penetrate her vagina with his fingers. N.J. did not remember how

many times this happened, but she testified that it was at least a “handful of times.”

Doc. 151 at 19. She did not tell anyone about the incidents for several years.

       3
           Although N.J. was not a minor when she testified, we use her initials to protect her
privacy.
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Then, when she was 14, she overheard her older sister telling their mother that

Alpizar had touched the sister inappropriately. N.J. and her sister reported the

touching to the police, and Alpizar was arrested. The charges against him later

were dropped. N.J. testified that her mother told her that the evidence had been

insufficient or inconsistent. N.J. and her sister moved in with their father, and N.J.

attended counseling. She testified that the abuse had affected her personal

relationships and that she felt sorry for Alpizar.

      The district court found N.J. very credible, explaining that her reaction was

consistent with what would be expected of a nine year old child, she had attended

counseling, and she had not tried to magnify the nature of the abuse or exaggerate

the number of times it had happened. The court concluded that through N.J.’s

testimony the government had proven by a preponderance of the evidence that

Alpizar had engaged in a pattern of activity involving the sexual abuse of a minor

and overruled Alpizar’s objection regarding that enhancement.

      As for the obstruction of justice enhancement, the district court agreed with

Alpizar that his attempts to delete child pornography from his computer did not

warrant the enhancement. The district court nonetheless found that the

enhancement applied based on Alpizar’s willful failure to appear for judicial

proceedings and feigning mental illness to delay trial.




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       The district court also overruled Alpizar’s objection to the distribution

enhancement. The court found that Alpizar’s knowledge of and sophistication

with computers and his decision to leave ARES open and running so others could

access his shared folder—especially after law enforcement had put him on notice

during the first search and interview that through ARES he was sharing child

pornography—supported a finding that Alpizar had knowingly distributed child

pornography. 4

       Finally, the district court overruled Alpizar’s objection that an enhancement

for use of a computer and another for distribution constituted double counting.

Circuit precedent made clear that the United States Sentencing Commission

intended each of the enhancements in U.S.S.G. § 2G2.2 to apply cumulatively.

       With a total offense level of 43 and a criminal history category of I,

Alpizar’s guidelines sentence was life in prison. His guidelines range was

adjusted, however, to 1,440 months, the statutory maximum of 20 years for each of

the six counts, running consecutively. See U.S.S.G. § 5G1.2(d) (explaining that

when a defendant is convicted of multiple offenses and the maximum sentence for

any single count is less than the defendant’s guidelines range, the counts must run


       4
         Although Alpizar was sentenced under the 2015 Sentencing Guidelines, which
contained no mens rea element for U.S.S.G. § 2G2.2(b)(3)(F), see United States v. Creel, 783
F.3d 1357, 1359-60 (11th Cir. 2015), the district court expressly gave Alpizar the benefit of the
2016 Sentencing Guidelines, which amended the enhancement to require knowing distribution,
see U.S.S.G. § 2G2.2(b)(3)(F); United States v. Monetti, 705 F. App’x 865, 868-69 (11th Cir.
2017) (unpublished) (recognizing 2016 amendment).
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consecutively to increase the sentence until it equals the guidelines range); see also

United States v. Sarras, 575 F.3d 1191, 1208-09 (11th Cir. 2009) (relying on

U.S.S.G. § 5G1.2(d) to explain why the defendant’s advisory guidelines range had

been adjusted from life in prison to 1,200 months—the statutory maximum for

each count running consecutively).

      After calculating the advisory guidelines range, the district court discussed

the nature and circumstances of Alpizar’s offense and his history and

characteristics. As to the nature of his offense, the district court emphasized that

Alpizar had continued to view and share child pornography after being caught and

promising to stop. The court also noted that Alpizar had obstructed justice by

feigning mental illness to avoid trial. As to Alpizar’s history and characteristics,

the district judge acknowledged that Alpizar had served his country in a high-level,

stressful position but remarked that Alpizar was the first defendant to appear

before the judge for possession of child pornography who also had committed

sexual abuse. The district court also commented that, with the exception of a brief

“I’m sorry,” Alpizar had expressed no remorse toward the victims, including N.J.,

instead focusing on why he thought he deserved leniency. The court, noting that it

had considered all of the § 3553(a) factors, sentenced Alpizar to 1,440 months in

prison—20 years for each count, to be served consecutively—which it noted was

within the guidelines range. This is Alpizar’s appeal.


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                        II.     STANDARDS OF REVIEW

      We review the reasonableness of a sentence for an abuse of discretion. Gall

v. United States, 552 U.S. 38, 51 (2007). Reviewing the reasonableness of a

sentence is a two-step process. “We look first at whether the district court

committed any significant procedural error and then at whether the sentence is

substantively reasonable under the totality of the circumstances.” United States v.

Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). The party challenging the sentence

bears the burden of showing it is unreasonable in light of the record and relevant

factors. Id.

      “With respect to Sentencing Guidelines issues,” we review “purely legal

questions de novo, a district court’s factual findings for clear error, and, in most

cases, a district court’s application of the guidelines to the facts with due

deference.” United States v. Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010)

(internal quotation marks omitted). A finding is not clearly erroneous unless we

are “left with a definite and firm conviction that a mistake has been committed.”

Id. (internal quotation marks omitted). The burden is on the government to

“establish[] by a preponderance of the evidence the facts necessary to support a

sentencing enhancement.” United States v. Kinard, 472 F.3d 1294, 1298 (11th Cir.

2006).




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                                      III.    ANALYSIS

          On appeal, Alpizar argues that his sentence is procedurally and substantively

unreasonable.5 For the reasons that follow, we affirm Alpizar’s sentence.

A.        Procedural Reasonableness

          “A sentence may be procedurally unreasonable if the district court

improperly calculates the Guidelines range, treats the Guidelines as mandatory

rather than advisory, fails to consider the appropriate statutory factors, selects a

sentence based on clearly erroneous facts, or fails to adequately explain the chosen

sentence.” United States v. Gonzalez, 550 F.3d 1319, 1323 (11th Cir. 2008). Here,

Alpizar argues that his sentence is procedurally unreasonable because the district

court erroneously applied four different sentencing enhancements—for obstruction

of justice, distribution of child pornography, engaging in a pattern of activity

involving the sexual abuse or exploitation of a minor, and the use of a computer.

We address each enhancement in turn.

          1.    Enhancement for Obstruction of Justice

          Alpizar first argues that the district court erroneously applied a two-level

enhancement for obstruction of justice under U.S.S.G. § 3C1.1. That provision

states:

          5
         Alpizar also argues that the evidence was insufficient to convict him of knowingly
receiving and possessing child pornography and that the district court abused its discretion by
admitting certain pieces of evidence during trial. We affirm the district court on these issues,
which warrant no further discussion.
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      If (1) the defendant willfully obstructed or impeded, or attempted to
      obstruct or impede, the administration of justice with respect to the
      investigation, prosecution, or sentencing of the instant offense of
      conviction, and (2) the obstructive conduct related to (A) the
      defendant’s offense of conviction and any relevant conduct; or (B) a
      closely related offense, increase the offense level by 2 levels.

U.S.S.G. § 3C1.1. The commentary to U.S.S.G. § 3C1.1 explains that “willfully

failing to appear, as ordered, for a judicial proceeding” is one example of conduct

covered under this enhancement. Id. § 3C1.1 cmt. n.4(e). This court has held that

the obstruction of justice enhancement properly was applied where a defendant

“feigned amnesia,” which “postponed the trial for a year and forced the

government to waste time and resources in evaluating his competency.” United

States v. Patti, 337 F.3d 1317, 1325 (11th Cir. 2003).

      The district court committed no clear error in finding that the government

had proven by a preponderance of the evidence that Alpizar had feigned mental

illness and wasted government time and resources, thus committing obstruction of

justice. In a pretrial proceeding, the district court reviewed an evaluation by

professionals from the Mental Health Unit at the Federal Medical Center-Butner

regarding Alpizar’s competency. The report explained that Alpizar’s pretrial

behavior—including pretending not to recognize his attorney or remember the

charges against him—was “the result of a volitional attempt to present as

incompetent to stand trial” and that “[h]is only diagnosis [was] malingering.” Doc.

147 at 6. This report, along with Alpizar’s decision to check himself into a
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hospital on several occasions right before a hearing or trial—resulting in several

continuances and delaying the trial by more than six months—sufficed to establish

that Alpizar had committed obstruction of justice. The application of this

enhancement was not erroneous.

      2.     Enhancement for Distribution

      Alpizar next argues that the district court erred in applying a two-level

enhancement for knowing distribution of child pornography under U.S.S.G.

§ 2G2.2(b)(3)(F). Although he admits that he shared child pornography, he asserts

that he did not knowingly share the files; rather, he argues, the files were auto-

shared due to the nature of the ARES program.

      The district court did not clearly err in finding that the government had

proven by a preponderance of the evidence that Alpizar knowingly distributed

child pornography. This court recently reversed a defendant’s conviction for

distribution of child pornography because the evidence was insufficient to prove

beyond a reasonable doubt that the defendant had engaged in knowing distribution.

See generally United States v. Carroll, 886 F.3d 1347 (11th Cir. 2018). In Carroll,

the only evidence that the defendant knowingly had distributed child pornography

was that he had placed the files in his ARES shared folder. Id. at 1353. The court

explained that “the fact that files were automatically shared from [the defendant’s]

Ares folder, without some evidence of his awareness of it, cannot carry the


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government’s burden to prove knowing distribution beyond a reasonable doubt.”

Id. at 1353-54. Importantly, the court noted that “[n]othing in the record

demonstrate[d] that [the defendant] . . . was even aware that the contents of his

Ares folder were automatically distributed to the peer-to-peer network.” Id. at

1353. Further, the court explained that “the government did not put forth evidence

that [the defendant] had some advanced technological proficiency that might have

rendered his ignorance to the file sharing process implausible.” Id. at 1354 n.4.

      Unlike the defendant in Carroll, Alpizar did in fact have advanced computer

knowledge: he had a diploma from the Dade County School Board indicating that

he had met the requirements for a certificate in electronics technology; he admitted

that he had built his computer himself; a program had been installed on his

computer to erase deleted files; and the computer’s ability to create shadow copies

of deleted files had been disabled to avoid detection. Alpizar also admitted to

knowing how file sharing programs like ARES worked. Finally, Alpizar was on

notice that he was sharing child pornography after the FBI came to his house,

confiscated his computer and hard drives, and interviewed him. The officers

discussed with Alpizar how ARES file sharing worked, and he promised not to do

it again. Nevertheless, he continued to share child pornography through ARES

after that date. This evidence was more than sufficient for the district court to find




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that Alpizar knowingly distributed child pornography. The application of the

enhancement therefore was not erroneous.

      3.      Enhancement for Pattern of Activity

      Alpizar argues that the district court erred in applying a five-level

enhancement for engaging in a pattern of activity involving the sexual abuse or

exploitation of a minor under U.S.S.G. § 2G2.2(b)(5). The Sentencing Guidelines

define “[p]attern of activity involving the sexual abuse or exploitation of a minor”

as follows:

      [A]ny combination of two or more separate instances of the sexual
      abuse or sexual exploitation of a minor by the defendant, whether or
      not the abuse or exploitation (A) occurred during the course of the
      offense; (B) involved the same minor; or (C) resulted in a conviction
      for such conduct.

U.S.S.G. § 2G2.2 cmt. n.1. Further, “sexual abuse or exploitation” does not

include “possession, . . . receipt, or trafficking in material relating to the sexual

abuse or exploitation of a minor.” Id.

      Alpizar argues that the district court erred in applying this enhancement

because (1) his offense of conviction does not constitute “sexual abuse or

exploitation,” (2) there was no credible evidence that he had engaged in two or

more instances of sexual abuse of a minor, and (3) the previous activity regarding

his stepdaughter was too remote in time to be probative. We reject these

arguments.


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       As to his first argument, Alpizar is correct that neither possession nor receipt

of child pornography qualifies as “sexual abuse or exploitation.” But his offense

of conviction did not serve as the basis for the application of this enhancement.

Instead, the district court applied the enhancement because Alpizar had, on two or

more occasions, sexually abused his former stepdaughter.

       As regards his second argument, the evidence was sufficient to establish that

Alpizar had committed two or more separate instances of sexual abuse of a minor.

N.J., Alpizar’s former stepdaughter, testified that Alpizar penetrated her vagina

with his fingers on at least a “handful” of occasions when she was nine years old.

Doc. 151 at 19. In finding that N.J. was very credible, the district court considered

her age at the time of the incident, the fact that she had gone to counseling, and her

demeanor and testimony. We find no clear error in the district court’s credibility

determination and, consequently, its finding that the enhancement was justified

because Alpizar had sexually abused N.J. on two or more occasions when she was

a minor.6

       As for Alpizar’s third argument, that the conduct was too remote in time to

be probative, this argument fails in light of our decision in United States v. Turner,

626 F.3d 566 (11th Cir. 2010). In Turner, the defendant was convicted of receipt

and possession of child pornography. Id. at 568. The district court applied the

       6
        Although Alpizar argues that N.J.’s testimony about her sister’s disclosure was hearsay,
the enhancement is proper based only on Alpizar’s conduct as to N.J. herself.
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five-level enhancement for pattern of activity because the defendant had been

convicted of sexually abusing a minor in 1990, 19 years prior. The victim

provided a statement to the sentencing court, in which she said that from ages two

to five, she had been sexually abused by the defendant “on numerous occasions.”

Id. at 569. The defendant admitted that he had sexually abused a child on two or

more occasions, but he argued that the behavior was “too remote in time to

constitute a ‘pattern of activity.’” Id. at 572. The Turner court rejected that

argument, explaining:

      Nothing in § 2G2.2(b)(5) or its commentary suggests that the “pattern
      of activity” must be temporally close to the offense of conviction.
      Under the plain terms of the commentary, the only requirements for
      establishing a “pattern of activity” are two or more instances of sexual
      abuse or exploitation of a minor that are separate from one another.
      Turner’s repeated sexual abuse of a little girl over several years in the
      late 1980s more than satisfies those requirements.

Id. at 573. This court thus has specifically rejected Alpizar’s argument that

U.S.S.G. § 2G2.2(b)(5) has a temporal limitation.

      In sum, the district court did not clearly err in finding N.J. credible and in

finding that the government had proven by a preponderance of the evidence that

she had been sexually abused by Alpizar on two or more occasions when she was a

minor. The application of the enhancement for pattern of activity was not

erroneous.




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      4.     Enhancement for Use of a Computer

      Finally, Alpizar argues that the district court erred in applying a two-level

enhancement for using a computer to receive and possess child pornography under

U.S.S.G. § 2G2.2(b)(6). He admits that he used a computer to access and possess

child pornography, but he argues that the enhancement constitutes impermissible

double counting because he also received an enhancement for distribution, which

occurred through the ARES program and required the use of a computer.

      “Impermissible double counting occurs only when one part of the Guidelines

is applied to increase a defendant’s punishment on account of a kind of harm that

has already been fully accounted for by application of another part of the

Guidelines.” United States v. Cubero, 754 F.3d 888, 894 (11th Cir. 2014) (internal

quotation marks omitted). “Moreover, [w]e presume that the Sentencing

Commission intended separate guidelines sections to apply cumulatively, unless

specifically directed otherwise.” Id. (alteration in original) (internal quotation

marks omitted).

      This court has explained that U.S.S.G. § 2G2.2 addresses a “wide range of

criminal conduct that occurs after child pornography has been produced.” Id. To

capture this wide range of conduct, “guideline § 2G2.2 is structured so that the

range of harms associated with child pornography distribution can be addressed

through various offense level increases and decreases.” Id. at 895.


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      This court has held in similar circumstances that the enhancement for use of

a computer is not double counting. See United States v. Little, 864 F.3d 1283,

1291 (11th Cir. 2017). The Little court reasoned that use of a computer was not

required for the offense of transportation of child pornography under the relevant

statute; thus, “in a transportation case . . . where the child pornography was

transported using a computer, application of a § 2G2.2(b)(6) enhancement for the

use of a computer does not result in impermissible double counting.” Id.

      Following the Little court’s reasoning, we conclude that Alpizar’s

enhancement for use of a computer is not duplicative of his enhancement for

distribution. As relevant to § 2G2.2, the Sentencing Guidelines define

“[d]istribution” as follows:

      [A]ny act, including possession with intent to distribute, production,
      transmission, advertisement, and transportation, related to the transfer
      of material involving the sexual exploitation of a minor. Accordingly,
      distribution includes posting material involving the sexual
      exploitation of a minor on a website for public viewing but does not
      include the mere solicitation of such material by a defendant.

U.S.S.G. § 2G2.2 cmt. n.1. Like the statutory offense of transportation of child

pornography examined in Little, “distribution” does not require the use of a

computer because one can “possess[] with intent to distribute, produc[e],

transmit[], advertise[], and transport[]” covered material through means other than

a computer. Id. Accordingly, the enhancement for use of a computer does not



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cover the same conduct as the enhancement for distribution, and the application of

both enhancements is not impermissible double counting.

      Whether an enhancement for using a computer to receive, possess, or

distribute child pornography remains appropriate in the present day—when the

computer also is the most pervasive and probable means of receipt, possession, and

distribution—is a valid question. “Indeed,” as the United States Sentencing

Commission has noted, the computer enhancement originally was “promulgated

when offenders typically received and distributed child pornography in printed

form using the United States mail,” and the enhancement was “intended to apply to

only certain offenders who committed aggravated child pornography offenses”

rather than operate as the “routine[]” enhancement it does today. United States

Sentencing Comm’n, Report to Congress: Federal Child Pornography Offenses

313 (2012). But it is not up to the courts to rewrite the guideline, which was

“promulgated pursuant to specific congressional directives or legislation.” Cubero,

754 F.3d at 899 (emphasis and internal quotation marks omitted). The application

of this enhancement was not erroneous.

B.    Substantive Reasonableness

      Because the district court committed no procedural error, we next consider

the substantive reasonableness of Alpizar’s sentence. Alpizar argues that his 1,440

month sentence for the receipt and possession of child pornography is


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substantively unreasonable. Although he concedes that with the enhancements

applied the Sentencing Guidelines indicate that his sentence should be life in

prison, he argues that the guidelines range “substantially over-states the

appropriate punishment” for his conduct. Appellant’s Br. at 58. We disagree.

      Under 18 U.S.C. § 3553(a), the district court is required to impose a

sentence “sufficient, but not greater than necessary, to comply with the purposes”

of § 3553(a)(2)—the need to reflect the seriousness of the offense; promote respect

for the law; provide just punishment; deter criminal conduct; protect the public

from the defendant’s future criminal conduct; and effectively provide the

defendant with educational or vocational training, medical care, or other

correctional treatment. 18 U.S.C. § 3553(a)(2). The district 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 guidelines 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).

      In conducting our review, we consider the totality of the circumstances and

whether the statutory factors in 18 U.S.C. § 3553(a) support the sentence in

question. Gonzalez, 550 F.3d at 1324. Although we do not automatically presume




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a within-guidelines sentence to be reasonable, ordinarily we expect it to be. United

States v. Asante, 782 F.3d 639, 648 (11th Cir. 2015).

      A district court abuses its discretion and imposes a substantively

unreasonable sentence “only when it (1) fails to afford consideration to relevant

factors that were due significant weight, (2) gives significant weight to an improper

or irrelevant factor, or (3) commits a clear error of judgment in considering the

proper factors.” United States v. Rosales-Bruno, 789 F.3d 1249, 1256 (11th Cir.

2015) (internal quotation marks omitted). The weight given to any specific

§ 3553(a) factor is committed to the sound discretion of the district court, United

States v. Langston, 590 F.3d 1226, 1237 (11th Cir. 2009), and we may vacate a

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. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010)

(en banc) (internal quotation marks omitted).

      Alpizar’s 1,440 month sentence—which, although extraordinarily long, was

within Alpizar’s guidelines range—was substantively reasonable. The district

court gave extensive attention to the sentence it imposed. The court expressly

stated that it had considered all of the § 3553(a) factors, and it discussed, on the

record, several of those factors, including the circumstances of the offense and


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Alpizar’s history and characteristics. For example, the district court considered

that Alpizar had continued to download child pornography after he had been

caught by law enforcement and promised to stop and also had obstructed justice by

feigning mental illness and repeatedly delaying his trial. The district court

acknowledged that Alpizar had served his country in a high-level, stressful

position, but also emphasized that Alpizar was the first defendant the court had

encountered who had sexually abused a minor in addition to possessing child

pornography. Under these circumstances, we are not left with a “definite and firm

conviction that the district court committed a clear error of judgment in weighing

the § 3553(a) factors.” Id. (internal quotation marks omitted). We recognize that

1,440 months is an “incredibly strong sentence,” doc. 151 at 92, but we cannot say

the district court abused its discretion in imposing it. See Gall, 552 U.S. at 51

(“The fact that the appellate court might reasonably have concluded that a different

sentence was appropriate is insufficient to justify reversal of the district court.”).

Under our deferential standard of review, Alpizar’s sentence is substantively

reasonable.

                                IV.    CONCLUSION

      For the foregoing reasons, we affirm Alpizar’s conviction and sentence.

      AFFIRMED.




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