     Case: 11-40680     Document: 00511859634         Page: 1     Date Filed: 05/17/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           May 17, 2012
                                     No. 11-40680
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

GABRIEL RIOS,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:10-CR-1233-1


Before WIENER, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Gabriel Rios appeals his conviction and resulting
120-month within-guidelines sentence for eight counts of possession of child
pornography. Rios argues that the evidence was insufficient to support his
conviction because the government failed to establish that he knowingly
possessed child pornography and that he intended to view child pornography.
He challenges the substantive reasonableness of his sentence, arguing that it is
greater than necessary to accomplish the sentencing objectives of 18 U.S.C.

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 11-40680    Document: 00511859634      Page: 2   Date Filed: 05/17/2012

                                  No. 11-40680

§ 3553(a). Rios further contends that the child pornography Guidelines are not
entitled to deference because they are not empirically based, but Rios correctly
notes that this argument is foreclosed and raises it to preserve for further
possible review. See United States v. Miller, 665 F.3d 114, 119-26 (5th Cir.
2011). Finally, Rios argues that the condition of release compelling him to
submit to psycho-physiological testing, including application of the penile
plethysmograph, is overly broad and constitutes an unnecessary deprivation of
his liberty interests.
      We will uphold the jury’s verdict if a rational trier of fact could conclude
that “the elements of the offense were established beyond a reasonable doubt,
viewing the evidence in the light most favorable to the verdict and drawing all
reasonable inferences from the evidence to support the verdict.” United States
v. Percel, 553 F.3d 903, 910 (5th Cir. 2008) (internal quotation marks and
citation omitted). Direct and circumstantial evidence are weighed equally, and
it is not necessary that the evidence exclude every reasonable hypothesis of
innocence. United States v. Mendoza, 226 F.3d 340, 343 (5th Cir. 2000). We do
“not weigh evidence or assess the credibility of witnesses, and the jury is free to
choose among reasonable constructions of the evidence.”          United States v.
Ramos-Cardenas, 524 F.3d 600, 605 (5th Cir. 2008).
      Under 18 U.S.C. § 2252A(a)(5)(B), the government was required to prove
that Rios knowingly possessed or accessed, with the intent to view, any material
that contains an image of child pornography that was mailed, shipped, or
transported in or affecting interstate or foreign commerce by any means,
including a computer.
      In the instant case, Rios incriminated himself and was identified as the
most frequent user of the computer.         The number of videos found on the
computer, the explicit terms in the titles of the videos referencing child
pornography, and the fact that many of the videos were previewed during the
downloading process showed an intent to possess and access child pornography.

                                        2
   Case: 11-40680   Document: 00511859634     Page: 3   Date Filed: 05/17/2012

                                 No. 11-40680

Viewing the evidence in a light most favorable to the verdict, a reasonable trier
of fact could have found beyond a reasonable doubt that Rios knowingly
possessed child pornography.
      The substantive reasonableness of a sentence is reviewed for abuse of
discretion. Gall v. United States, 552 U.S. 38, 51 (2007). As Rios’s sentence was
within the guidelines range, his sentence is presumptively reasonable. See
United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). The presumption of
reasonableness “is rebutted only upon a showing that the sentence does not
account for a factor that should receive significant weight, it gives significant
weight to an irrelevant or improper factor, or it represents a clear error of
judgment in balancing sentencing factors.” Id.
      In this instant case, the court reflected on the factors of § 3553(a). The
court properly considered deterrence and the need to protect the public from
future crimes. Rios offers nothing to show that the court’s presumptively
reasonable choice of a within-guidelines sentence was an abuse of discretion. See
United States v. Newson, 515 F.3d 374, 379 (5th Cir. 2008).
      Rios’s final argument that the special condition of release compelling him
to submit to treatment that may include psycho-physiological testing constitutes
an unnecessary deprivation of his liberty interests is not ripe for review. See
United States v. Carmichael, 343 F.3d 756, 761-62 (5th Cir. 2003).
      Accordingly, the judgment of the district court is AFFIRMED.




                                       3
