           Case: 19-15179   Date Filed: 07/31/2020   Page: 1 of 18



                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-15179
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 1:19-cr-00015-AW-GRJ-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

JOSEPH DONALD ROBERTS,

                                                         Defendant-Appellant.

                       ________________________

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

                              (July 31, 2020)

Before BRANCH, GRANT, and LUCK, Circuit Judges.

PER CURIAM:
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       On July 19, 2018, special agents of the Florida Department of Law

Enforcement (“FDLE”) executed a search warrant on the home of William and

Elizabeth Roberts and their adult sons, Joseph and Richard Roberts. They

recovered a computer and a laptop from what turned out to be Joseph Roberts’s

bedroom, in addition to other electronic devices throughout the house. They also

recovered Joseph Roberts’s cellphone when he arrived on the scene. A forensic

examination revealed child pornography on those three devices. The cellphone, in

particular, had three videos, secretly recorded, of children in the bathroom in the

Roberts’s home. The children in the cellphone videos are Richard Roberts’s

children—Joseph Roberts’s niece and nephew.

       Joseph Roberts was ultimately convicted of producing, receiving, and

possessing child pornography and received a 360-month sentence for those crimes.

On appeal, he argues that insufficient evidence supports his convictions because

the evidence against him did not foreclose the possibility that someone else

produced and downloaded the child pornography on his electronic devices. He

also argues that his sentence is substantively unreasonable because the district

court did not afford proper weight to his stable home and work life, his dedication

to helping others, and his lack of criminal history. 1 We affirm his convictions



       1
         In his reply brief, Roberts also argues that his sentence is harsher than similarly situated
offenders and is as harsh as offenders who had engaged in more egregious conduct. We do not


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because the evidence presented at trial permitted the jury to conclude that Joseph

Roberts was responsible for the production, receipt, and possession of the child

pornography on his electronic devices. And because it is substantively reasonable,

we affirm his sentence.

                                                I.

       A. Joseph Roberts’s Trial

       A grand jury indicted Joseph Roberts on three counts: (1) producing child

pornography, in violation of 18 U.S.C. § 2251(a) and (e) (Count 1); (2) receiving

child pornography, in violation of 18 U.S.C. § 2252A(a)(2) and (b)(1) (Count 2);

and (3) possessing child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B)

and (b)(2) (Count 3). Joseph Roberts pleaded not guilty to all counts, and the case

proceeded to trial.

       Because Joseph Roberts challenges the sufficiency of the evidence in

support of his convictions, we must go through his trial in some detail. In its case

in chief, the prosecution presented evidence that three electronic devices belonging

to Joseph Roberts contained child pornography and one of those devices had been

used to produce photos and videos depicting child pornography. FDLE Special

Agent Erika Hindle-Morris testified as to the events leading up to the search of the




address that argument, however, because he did not raise it in his initial brief. See United States
v. Curtis, 380 F.3d 1308, 1310 (11th Cir. 2004).


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Roberts’s home and the materials discovered on the seized electronic devices. In

May 2018, Hindle-Morris identified an IP address that advertised sharing child

pornography through a file-sharing network. 2 Hindle-Morris “reach[ed] out” to the

user at the IP address that had advertised sharing child pornography and the user

sent her a child pornography video. She then subpoenaed the internet service

provider and identified the registered users of the IP address and the associated

residential address. Having obtained the names of the authorized subscribers—

William, Elizabeth, and Richard Roberts—and the relevant residential address,

Hindle-Morris obtained a search warrant for the Roberts’s residence. She executed

the warrant on July 19, 2018. As relevant here, in searching one of the bedrooms

in the Roberts’s home, FDLE agents found a Dell Alienware computer, a Dell

laptop, and mail with Joseph Roberts’s name on it. When Joseph and his brother,

Richard Roberts, arrived, the FDLE agents also collected Joseph Roberts’s

cellphone.




       2
          Hindle-Morris broke down the file-sharing process for the jury. As she explained, the
first step in utilizing an electronic device’s file-sharing capabilities is to install a file-sharing
application or software, such as Shareaza, that enables the user to access the relevant network.
Once connected to the network, the user can search for certain files and connect to the device of
another network user that has the desired files. The users of those devices can then share files.
The files are downloaded into a folder within the filing-sharing application.
         The devices are able to connect to the network through the internet, which an Internet
Service provider provides. The Internet Service provider assigns an IP (or “Internet Protocol”)
address. Hindle-Morris was able to determine that someone at the Roberts’s home was sharing
child pornography by identifying the IP address being used.


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      The FDLE agents advised Joseph Roberts of his rights and spoke with him

about the electronic devices they had found. He told them that he owned the

computer and the laptop and that the bedroom in which they were found was his.

He told Hindle-Morris that no one besides him had access to those devices or his

room. He also said that he was familiar with file sharing. But he denied viewing

or possessing child pornography.

      A forensic examination revealed that the laptop, the computer, and the

cellphone had photos and videos depicting child pornography. The creation dates

for the child pornography files on the laptop and computer spanned months. The

cellphone had three videos of children, which the prosecution published to the jury.

Two of the videos were made on July 1, 2018 and were of a nude nine-year-old

female child using the bathroom. Another was made on July 8, 2018 and depicted

a clothed 14-year-old male child walking into the bathroom. Hindle-Morris

identified the children in those videos as Richard’s son and daughter. She

explained that the bathroom in the videos was in the Roberts’s home, and, based on

the orientation of the video, the person recording the video must have done so from

Joseph Roberts’s bedroom. The FDLE agents did not find child pornography

elsewhere in the Roberts’s home.

      The prosecution also called the two FDLE agents who examined Joseph

Roberts’s digital devices. David Decker, a FDLE digital forensic examiner



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consultant, testified about his examination of Joseph Roberts’s laptop and

computer. He found evidence of a filing sharing program—Shareaza—on the

laptop. Decker explained that Shareaza creates directories in which it stores files

that the computer is either sharing or downloading from other computers. The

laptop had a Shareaza directory (labeled “incomplete” because it had not finished

downloading), which included a number of child abuse video files. Although

Shareaza was not currently installed on the laptop, based on the laptop’s

downloaded files, Decker concluded that the program had been installed in the

past, and that it had been run many times. Decker found similar evidence on

Joseph Roberts’s computer, including Shareaza files and evidence that Shareaza

had been downloaded and used extensively. Decker also found child abuse

material in folders for Real Player, which is an older file sharing application.

Finally, Decker found evidence that search terms related to child pornography

were used on both the laptop and computer. Alexandra Wong, a FDLE crime

laboratory analyst, testified that she examined Joseph Roberts’s cellphone and

found the three July 2018 videos of Richard Roberts’s children. Based on her

experience, Wong believed that the video files were made with the cell phone

camera and that they had not been tampered with or otherwise altered.

      Richard Roberts and his ex-wife and the mother of the children, Rebecca

Oleson, also testified on behalf of the prosecution. Richard Roberts testified that



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he lived with his parents and brother, and they all had separate bedrooms in the

home. He explained that in July 2018, his brother and father remodeled the

bathroom to replace the bathtub with a shower. Richard Roberts did not help with

the repairs. During the investigation, he was shown two pictures of his daughter

using the bathroom. Based on the vantage point, Richard testified that the pictures

“would have had to come from where there was a hole in the wall where the

plumbing was taken out” during the remodel. Richard further stated that the hole

was in the wall between the bathroom and Joseph Roberts’s bedroom. Oleson

testified, in pertinent part, that Joseph and Richard Roberts were both educated in

computer repair and had used file-sharing software to pirate movies, music, and

television shows for around 19 years.

      Joseph Roberts did not challenge any of the evidence offered by the

prosecution. Rather, his chief defense was that he had nothing to do with the child

pornography and someone else in the household (presumably his brother Richard)

must have downloaded and produced the child pornography on his devices.

Accordingly, on cross examination, defense counsel questioned Decker, who

examined the computers, whether it was possible to determine which device user

downloaded certain Shareaza material. Decker acknowledged that there is no way

to determine whether it was the device owner or some unauthorized user who

downloaded Shareaza files and that if the device is not password protected then



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someone other than the owner could execute the downloads. Similarly, Wong,

who examined the cellphone, recognized that just because someone owns a

cellphone does not necessarily mean that he took the videos taken on it. And on

cross-examination, Richard Roberts testified that the bedroom doors in the home

did not have deadbolts and it was not common for the family to lock interior doors.

      The defense’s only witness was Joseph Roberts himself. He testified that he

had never downloaded child pornography but had used Shareaza to download

pornography. He said that when downloading pornography, he would not know

whether it was regular pornography or child pornography until it had downloaded

onto his computer. His computer was not password protected, and although his

laptop did have a password, he left it running and unlocked. He also testified that

his cellphone did not have a password and he had a second cellphone that he left at

home when he went to work.

      At the close of the evidence, Joseph Roberts moved for a judgment of

acquittal. As to Count 1, he argued that the government did not show that he had

used a minor to engage in sexually explicit conduct to produce pornography. As to

Counts 2 and 3, he argued that the government had not shown that he “knowingly”

received or possessed child pornography. The district court denied the motion and

the jury convicted Joseph Roberts on all three counts. He then renewed his motion

for a judgment of acquittal, which the court denied.



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      B. Sentencing

      Prior to sentencing, a probation officer prepared a presentence investigation

report (“PSI”) and determined that the advisory guideline term of imprisonment for

his crimes was 840 months, which is the statutory maximum. The probation

officer reached that number by first determining that Joseph Roberts’s total offense

level, after applying all the relevant increases, was 43. Because Joseph Roberts

had no criminal history, his criminal history category was 1. Based on an offense

level of 43 and a criminal history category of 1, the guideline imprisonment term

was life. But the statutory maximum sentence for Count 1 was 30 years and for

Counts 2 and 3 was 20 years. Accordingly, pursuant to U.S.S.G. § 5G1.2(b), the

probation officer determined that the “guideline range for his crimes [wa]s 840

months” in prison. Joseph Roberts did not object to the PSI.

      Joseph Roberts submitted a sentencing memorandum to the district court in

which he argued that the guideline sentence was “grossly disproportionate” to his

crime and requested a downward variance to a sentence substantially below the

guideline range. In support of that request, he pointed out that he had lived with

his parents for twenty years, his family had struggled financially throughout his

life, and he had worked at Walmart and grocery stores for many years. He argued

that his lack of criminal history and long-term employment history show that his

crime was an isolated one. Joseph Roberts attached letters from friends and



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family, including his brother, Richard, to the sentencing memorandum. In the

letters, Joseph Roberts’s friends and family attested to his generally good

character.

      Joseph Roberts reiterated his request for a downward variance to a

substantially lower sentence at the sentencing hearing. In support of that request,

his counsel raised specific portions of the letters attached to his sentencing

memorandum, including that Joseph Roberts was hardworking, assisted his

disabled mother, and was devoted to his family. Joseph Roberts then personally

addressed the court. He said he had done a lot of things that he was ashamed of

but asked the judge to “just look at [his] heart.”

      In response, the government invited Oleson, the children’s mother, to make

a statement to the court. She described her own pain in learning that a family

member “turned against” her daughter and “use[d] her body.” She also expressed

her fears that her daughter will suffer severe, long-term effects, such as developing

anxiety and PTSD, as well as entering into risky behaviors, such as substance

abuse and self-mutilation. And Oleson disputed Roberts’s statements that he had

not committed prior crimes, asserting that “[t]his was a long progression, with

multiple crimes committed along the way,” and he only “got caught” because he

“got sloppy.” She observed that Roberts had never been remorseful and asked the




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court to give him the maximum possible sentence. At the conclusion of her

statement, the government requested that the court impose the 840-month sentence.

       The district court did not impose the 840-month sentence called for by the

guidelines. It found that, although a lengthy sentence was appropriate, 840 months

(70 years) was greater than necessary. It therefore varied downward from the

guidelines sentence and imposed a 360-month sentence. The district court noted

that it considered the 18 U.S.C. § 3553(a) factors,3 including Joseph Roberts’s age

(43 years) and lack of criminal history. It also considered the fact that Roberts did

not cause physical harm in producing the illicit material but noted that this

consideration did not diminish the severity of the harm that Joseph Roberts caused.

The district court acknowledged that the harm to the victims of child pornography

was tremendous and continuous: the victims are re-victimized every time someone

views the images. It emphasized the importance of deterrence in fashioning the

sentence because people typically believe they can get away with child

pornography offenses. And finally, it identified the protection of the public from


       3
          Section 3553(a) mandates that the district court “impose a sentence sufficient, but not
greater than necessary” to: (1) reflect the seriousness of the offense, promote respect for the law,
and provide just punishment for the offense; (2) afford adequate deterrence to criminal conduct;
(3) protect the public from further crimes of the defendant; and (4) provide the defendant with
needed educational or vocational training, medical care, or other correctional treatment in the most
effective manner. 18 U.S.C. § 3553(a)(2)(A)–(D). In addition, the court must consider: (1) the
nature and circumstances of the offense and the history and characteristics of the defendant; (2)
the kinds of sentences available; (3) the guideline sentencing range; (4) any pertinent policy
statements; (5) the need to avoid unwarranted sentencing disparities; and (6) the need to provide
restitution to any victims. Id. § 3553(a)(1), (3)−(7).


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harm as an important factor that it had considered. Accordingly, the district court

sentenced Joseph to 360 months’ imprisonment on Count 1 and 240 months’

imprisonment on Counts 2 and 3, all to be served concurrently, followed by a

lifetime of supervised release. The district court also ordered restitution of $3,000

for each of the eight identified victims, including his niece and children in the other

materials he possessed, for a total of $24,000.

      Joseph Roberts timely appealed. On appeal, he argues that the district court

erred in denying his motion for acquittal because the evidence was insufficient to

sustain the jury’s verdict. He also argues that his sentence is substantively

unreasonable.

                                          II.

      A. Joseph Roberts’s Challenge of His Convictions for Insufficient Evidence

      Turning to the merits, we begin with Joseph Roberts’s assertion that there

was insufficient evidence to support his convictions. We review whether there is

sufficient evidence in the record to support a jury’s guilty verdict de novo,

“viewing the evidence in the light most favorable to the government, and drawing

all reasonable factual inferences in favor of the jury's verdict.” United States v.

Jiminez, 564 F.3d 1280, 1284 (11th Cir. 2009). “Evidence is sufficient to support a

conviction if ‘a reasonable trier of fact could find that the evidence established

guilt beyond a reasonable doubt.’” United States v. Maxwell, 579 F.3d 1282, 1299



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(11th Cir. 2009) (quoting United States v. Calhoon, 97 F.3d 518, 523 (11th Cir.

1996)). This test is the same regardless of whether the evidence is direct or

circumstantial. United States v. Isnadin, 742 F.3d 1278, 1303 (11th Cir. 2014).

Either way, the government need not disprove every reasonable hypothesis of

innocence; a jury may “choose among reasonable constructions of the evidence.”

United States v. Peters, 403 F.3d 1263, 1268 (11th Cir. 2005) (quoting United

States v. Montes-Cardenas, 746 F.2d 771, 778 (11th Cir. 1984)). But insofar as

“the government relies on circumstantial evidence, reasonable inferences, and not

mere speculation, must support the jury’s verdict.” Isnadin, 742 F.3d at 1303.

      Joseph Roberts contends that the evidence presented at trial was insufficient

to permit the jury to make a reasonable inference that Roberts knowingly

produced, received, and possessed child pornography. A person commits the crime

of production of child pornography when he “employs, uses, persuades, induces,

entices, or coerces any minor to engage in . . . any sexually explicit conduct for the

purpose of producing any visual depiction of such conduct.” 18 U.S.C. § 2251(a).

A person commits the crime of receipt of child pornography when he “knowingly

receives” such material. Id. § 2252A(a)(2). A person knowingly receives child

pornography when he “intentionally views, acquires, or accepts child pornography

on a computer from an outside source.” United States v. Pruitt, 638 F.3d 763, 766

(11th Cir. 2011). Finally, to support a conviction under § 2252A(a)(5)(B), the



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government must prove that a person “knowingly possesse[d]” child pornography.

18 U.S.C. § 2252A(a)(5)(B).

      A jury can rely on circumstantial evidence to find that a person knowingly

produced, received, and possessed child pornography so long as reasonable

inferences support its verdict. See Isnadin, 742 F.3d at 1303; see also United

States v. Santos, 553 U.S. 507, 521 (2008) (“[Knowledge] will be provable (as

knowledge must almost always be proved) by circumstantial evidence.”). In this

case, ample circumstantial evidence supports the inference that Roberts produced,

received, and possessed child pornography. FDLE agents found photos and videos

depicting child pornography on three devices that Joseph Roberts owned and kept

in his bedroom. The videos of his underage niece using the bathroom were

recorded on his cell phone through a hole in his bedroom wall. The illicit photos

and videos on his computer and laptop were downloaded using file-sharing

software over a period of months. What is more, Joseph Roberts had specialized

computer training and was familiar with file sharing. Although Roberts took the

stand and denied knowingly downloading child pornography, the jury was free to

reject that testimony and to consider that testimony as substantive evidence of his

guilt. See United States v. Brown, 53 F.3d 312, 314−15 (11th Cir. 1995).

Reasonable inferences from the evidence presented at trial, therefore, lead to the




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same conclusion the jury reached: Joseph Roberts committed the crimes for which

he was charged. Isnadin, 742 F.3d at 1303.

      Joseph Roberts’s defense against this conclusion is that another person in the

household—his brother, Richard, who was also familiar with file sharing—was

responsible for the child pornography. To sustain his conviction, the government

did not need to disprove Joseph Roberts’s theory that another person may have

produced or download the child pornography. Peters, 403 F.3d at 1268. Joseph

Roberts’s defense hinges on the factual assertion that he did not exercise exclusive

dominion or control over the computers and cellphone. And it is true that Richard

Roberts testified that the bedroom doors of the Roberts’s home were not dead

bolted and Joseph Roberts testified that the devices were not password protected,

or otherwise left unlocked. But Hindle-Morris testified that Joseph Roberts told

her that no one else had access to his devices. And no evidence in the record

indicates that anyone else ever used Joseph Roberts’s devices. Moreover, the

FDLE agents did not discover child pornography on any other device in the

Roberts’s home. Therefore, without any affirmative evidence, Joseph Roberts

points the finger at his brother Richard. The jury was not persuaded by this tactic

and, based on the evidence presented at trial, we cannot fault them for that. See

Peters, 403 F.3d at 1268 (“[W]e are bound by the jury’s . . . rejection of the

inferences raised by the defendant.”).



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      In conclusion, viewing this evidence and taking all reasonable inferences in

favor of the verdict, the evidence was sufficient to allow a reasonable jury to find

that Joseph Roberts knowingly produced, received, and possessed the child

pornography beyond a reasonable doubt. So we, like the district court, are bound

by the jury’s verdict. Accordingly, the district court did not err in denying Joseph

Roberts’s motion for acquittal and we affirm his convictions.

      B. Joseph Roberts’s Challenge to His Sentence as Substantively
      Unreasonable

      With his convictions undisturbed, we may now turn to Joseph Roberts’s

challenge to his sentence of 360-months’ imprisonment—well below the 840-

month guideline term of imprisonment and statutory maximum. He argues that his

sentence is substantively unreasonable because, in weighing the § 3553(a) factors,

the district court did not give sufficient weight to his longstanding employment,

stable home life, assistance to others, and lack of criminal history.

      We review the substantive reasonableness of a sentence under an

abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 41 (2007). “A

district court abuses its discretion 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. Irey, 612 F.3d 1160, 1189 (11th

Cir. 2010) (en banc) (quoting United States v. Campa, 459 F.3d 1121, 1174 (11th


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Cir. 2006) (en banc)). But “the weight given to any specific § 3553(a) factor is

committed to the sound discretion of the district court.” United States v. Croteau,

819 F.3d 1293, 1310 (11th Cir. 2016). We will 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.’”

Irey, 612 F.3d at 1190 (quoting United States v. Pugh, 515 F.3d 1179, 1191 (11th

Cir. 2008)). Finally, a sentence that falls significantly below the statutory

maximum is an indicator of reasonableness. United States v. Gonzalez, 550 F.3d

1319, 1324 (11th Cir. 2008).

      Joseph Roberts’s 360-month sentence is not substantively unreasonable.

When imposing the sentence, the district court acknowledged and applied the

§ 3553(a) factors: it considered Joseph Roberts’s personal history, character, and

lack of criminal history and balanced those factors against the harm he caused and

the need to deter others from engaging in similar conduct. Although Joseph

Roberts protests that the district court did not give his mitigating factors enough

weight, we do not second-guess the district court’s reasonable balancing of the

§ 3553(a) factors. See Croteau, 819 F.3d at 1310. Moreover, Joseph Roberts’s

360-month sentence falls well below the statutory maximum sentence of 840

months, which also indicates reasonableness. See Gonzalez, 550 F.3d at 1324.



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Accordingly, the district court did not abuse its discretion and we affirm Joseph

Roberts’s sentence.

      AFFIRMED.




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