           Case: 14-12369   Date Filed: 06/22/2015   Page: 1 of 10


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-12369
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 0:13-cr-60299-WPD-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                 versus

ROBERTO CARLOS CUELLAR,

                                                          Defendant-Appellant.

                       ________________________

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

                              (June 22, 2015)



Before JORDAN, JILL PRYOR and BLACK, Circuit Judges.

PER CURIAM:
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      Roberto Carlos Cuellar was convicted, after a jury trial, of one count of

possessing child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B), and was

sentenced to 210 months’ imprisonment. Cuellar appeals both his conviction and

sentence. After review, we affirm.

                                  I. DISCUSSION

A. Rule 16

      Cuellar first contends the district court should have granted his motion for

mistrial, after the Government committed what Cuellar characterizes as a violation

of Rule 16 of the Federal Rules of Criminal Procedure. Cuellar asserts the only

direct evidence tying him to the child pornography was his statements to the FBI,

and his trial strategy was to attack the accuracy of the agents’ report of those

statements. He argues the Government’s nondisclosure of his statement to the FBI

that he refused to write or sign a statement was a discovery violation of Rule 16,

and the violation attacked the foundation of his defense strategy and required a

mistrial.

      Rule 16(a) of the Federal Rules of Criminal Procedure requires the

government to disclose during discovery, upon the defendant’s request, “the

substance of any relevant oral statement made by the defendant, before or after

arrest, in response to interrogation by a person the defendant knew was a

government agent if the government intends to use the statement at trial.” Even if

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a Rule 16 violation occurred, however, we will not reverse unless the violation

prejudiced a defendant’s substantial rights, meaning that actual prejudice must be

shown. United States v. Chastain, 198 F.3d 1338, 1348 (11th Cir. 1999). “The

actual prejudice will often turn on the strength of the Government case,” United

States v. Rodriguez, 799 F.2d 649, 652 (11th Cir. 1986), but “the degree to which

[a defendant’s trial] rights suffer as a result of a discovery violation is determined

not simply by weighing all the evidence introduced, but rather by considering how

the violation affected the defendant’s ability to present a defense,” United States v.

Noe, 821 F.2d 604, 607 (11th Cir. 1987). “Substantial prejudice exists when a

defendant is unduly surprised and lacks an adequate opportunity to prepare a

defense, or if the mistake substantially influences the jury.” United States v.

Camargo-Vergara, 57 F.3d 993, 998–99 (11th Cir. 1995).

      Assuming, arguendo, there was a Rule 16 violation, there was no substantial

prejudice that would require reversal. See Chastain, 198 F.3d at 1348. The

strength of the Government’s case at trial was significant. Special Agent Dan

Johns testified that agents found a laptop with child pornography and a disc of the

Ares file-sharing program in Cuellar’s bedroom. At the FBI office, Cuellar

provided the password for the computer and showed the agents where the child

pornography files were in the library section of Ares, even though he denied

downloading them. Johns’ investigation showed that Cuellar owned the laptop

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since at least 2012, and the time-line analysis showed the computer was used to

both view and download child pornography in 2013.

      Kimberly Aldunate, Cuellar’s roommate, testified the computer belonged to

Cuellar, and she had never seen anyone else use it. Even though Cuellar had once

given her the password, she had never used the computer.

      Yohel Diaz, the forensic computer expert, testified that the files were found

in the “my shared folder” in Ares under the user name “Carlos.” One of these files

included a video downloaded four days before agents executed the search warrant

on Cuellar’s house. Similarly, searches for PTHC, or preteen hardcore content,

had been made in Ares two days before agents executed the search warrant.

      As such, even without any of Cuellar’s statements to the agents, there was

evidence the computer belonged to him, no one else used it, and someone whose

user name was the same as Cuellar’s middle name had both downloaded child

pornography four days before agents executed their search and searched for child

pornography two days before the agents’ search.

      The types of substantial prejudice present in Noe and Camargo-Vergara are

not present here. Unlike Noe, Cuellar was not unexpectedly forced to explain his

presence after presenting his alibi, and unlike Camargo-Vergara, Cuellar was not

unexpectedly forced to explain his apparent knowledge of drugs after emphasizing

that he wanted nothing to do with them. Noe, 821 F.2d at 607-08; Camargo-

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Vergara, 57 F.3d at 999. Cuellar argues his trial strategy was to attack the

accuracy of what the FBI agents claimed he told them, which was the only direct

evidence linking him to the child pornography. However, the other evidence

against him was significant. Because Cuellar was not substantially prejudiced, the

district court did not abuse its discretion in denying his motion for mistrial.

Chastain, 198 F.3d at 1348; see also United States v. Perez-Oliveros, 479 F.3d

779, 782 (11th Cir. 2007) (stating we review the district court’s denial of a motion

for mistrial for an abuse of discretion).

B. Sentencing Enhancements

      Next, Cuellar asserts the district court improperly applied sentencing

enhancements for sadistic content, distribution, use of a computer, and the number

of images. He contends the Sentencing Commission exceeded its authority in

eliminating the intent requirement for violent depictions because it renders the

enhancement arbitrary and because it violates due process. Cuellar argues the

enhancement for distribution by definition requires a showing of intent because

“distributing” means more than merely “making available.” He also asserts the

enhancement for using a computer is double-counting, and the guideline used in

this case was not created through the Sentencing Commission’s normal process

and thus yields disproportionate results.




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      We review for clear error the district court’s factual findings; review de novo

the district court’s legal interpretations of the sentencing guidelines, including

rejection of double-counting challenges; and review de novo the district court’s

application of the Sentencing Guidelines to the facts. United States v. Cubero, 754

F.3d 888, 892 (11th Cir.), cert. denied 135 S. Ct. 764 (2014).

      Cuellar’s arguments are without merit. First the district court did not err in

imposing the §2G2.2(b)(4) enhancement for sadistic or masochistic conduct.

Cuellar does not dispute the files included sadistic content or that the Sentencing

Guidelines do not require the Government to prove intent, see U.S.S.G. §2G2.2,

comment. (n.2); rather, his sole argument is that the enhancement is

unconstitutional without a finding of intent. But even if such a finding were still

required, Cuellar’s intent could have been inferred from the file names themselves.

Cf. United States v. Garrett, 190 F.3d 1220, 1224 (11th Cir. 1999) (concluding that

intending to receive photographs that depicted young children who were vaginally

and anally penetrated by adult men, as well as a photograph of a young girl who

was vaginally penetrated by a glass bottle, was sufficient to meet the intent

requirement of the sadistic content enhancement). Here, many of the file names

included the abbreviation “PTHC,” indicating the files contained “preteen

hardcore” content. Other files had similarly graphic titles that revealed their




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content. As such, the district court did not err in applying the sadistic content

enhancement.

      Second, the district court did not err in applying the enhancement for

distribution. This Court has concluded the distribution enhancement can be

applied when an offender uses a peer-to-peer file sharing program: “Allowing files

to be accessed on the Internet by placing them in a file sharing folder is akin to

posting material on a website for public viewing. When the user knowingly makes

the files accessible to others, the distribution is complete.” United States v.

Spriggs, 666 F.3d 1284, 1287 (11th Cir. 2012).

      Special Agent Johns testified that Cuellar installed Ares onto his computer.

Johns explained that Ares users shared files out of their “my shared folder.” While

the “my shared folder” was the default setting in Ares, it could be disabled by the

user. Furthermore, the transfer screen in Ares showed both the files that were

being downloaded as well as the files that were being shared to other users.

Cuellar could have changed the settings in Ares to prevent file-sharing or could

have saved the files in a folder not susceptible to file sharing, but he instead left the

files in his shared folder accessible to other users. Cf. United States v. Vadnais,

667 F.3d 1206, 1208-09 (11th Cir. 2012) (noting in dicta that a user could change

the default settings or could remove the files from the shared folder). As such, the




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district court did not err in applying the distribution enhancement. Spriggs, 666

F.3d at 1287.

      Third, the district court did not err in applying the computer enhancement.

This Court has concluded the sentencing enhancements under § 2G2.2 are meant to

apply cumulatively, since § 2G2.2 is structured so that the range of harms

associated with child pornography can be addressed through various offense level

increases and decreases. Cubero, 754 F.3d at 895 (deciding in the context of

§ 2G2.2(b)(3)(F)). As such, Cuellar’s sentence did not constitute impermissible

double-counting. See id.

      Fourth, Cuellar’s final argument—that the pertinent guideline in this case

was not created through the Sentencing Commission’s normal process and yields

disproportionate recommendations—is likewise without merit. Despite Cuellar’s

argument that Congress has directed that child pornography penalties be made

hasher over the Sentencing Commission’s objection, the Supreme Court has noted

that “the Commission is fully accountable to Congress, which can revoke or amend

any or all of the Guidelines as it sees fit.” Mistretta v. United States, 488 U.S. 361,

393-94 (1989).

C. Variance

      Finally, Cuellar argues the district court abused its discretion by not granting

his motion for a downward variance. Cuellar argues the child pornography

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guidelines are not the product of the Sentencing Commission’s usual empirically

grounded procedures and thus are entitled to far less weight than the typical

guideline provision under Kimbrough v. United States, 552 U.S. 85 (2007).

Because the district court sentenced Cuellar within that unreasonable range, his

sentence was unreasonable.

      We review a sentence for abuse of discretion, using a two-step process.

United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008). We first ensure that

the district court did not commit any significant procedural errors and, if none were

made, then determine whether the sentence is substantively reasonable in light of

the 18 U.S.C. § 3553(a) factors and the totality of the circumstances. Id. at 1190–

91. The burden of establishing that a sentence is unreasonable lies with the party

challenging the sentence. Id. at 1189.

      Cuellar’s sole argument is that the guideline applicable to child pornography

is not empirically grounded and that the district court should have exercised its

discretion to impose a below-guidelines sentence under Kimbrough. We have

already rejected a Kimbrough-type challenge to the child pornography guidelines,

concluding that their history and nature distinguish them from the crack cocaine

guidelines in Kimbrough. See Pugh, 515 F.3d at 1201 n.15. Furthermore,

Kimbrough concluded that a district court may—but is not required to—deviate

from the guidelines in a crack cocaine case because the crack/powder disparity

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might yield a sentence greater than necessary to achieve the purposes of § 3553(a),

not that the district court must lower a sentence when the guideline is not

supported by empirical data. 552 U.S. at 110.

      As such, Cuellar has failed to meet his burden in showing that his sentence

was unreasonable, and we affirm his sentence. See Pugh, 515 F.3d at 1189–92.

                                     II. CONCLUSION

      There was no substantial prejudice to Cuellar’s defense, and the district

court did not abuse its discretion in denying Cuellar’s motion for mistrial.

Furthermore, the district court did not err in using the sentencing enhancements to

calculate the appropriate guidelines range. Finally, the district court did not abuse

its discretion by denying Cuellar a downward variance, since the sentence imposed

was both procedurally and substantively reasonable. Accordingly, we affirm

Cuellar’s conviction and sentence.

      AFFIRMED.




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