         Case: 18-12472   Date Filed: 02/07/2019   Page: 1 of 10


                                                       [DO NOT PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 18-12472
                       Non-Argument Calendar
                     ________________________

             D.C. Docket No. 6:17-cr-00281-CEM-TBS-1



UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                versus

OSCAR LUIS BURGOS,

                                                        Defendant-Appellant.

                     ________________________

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

                          (February 7, 2019)
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Before MARCUS, ROSENBAUM, and BRANCH, Circuit Judges.

PER CURIAM:

      Oscar Luis Burgos appeals the substantive reasonableness of his 300-month

total sentence for child-pornography offenses, arguing that the district court abused

its discretion in imposing a 65-month upward variance from the top of the guideline

imprisonment range (188 to 235 months). After careful review, we affirm.

                                            I.

      This case stems from Burgos’s online interactions with a 14-year-old girl.

Burgos first contacted the child in May 2017 through Tumblr, an online

microblogging and social-networking website, and they chatted extensively. Within

a day, Burgos, who was 31 at the time, learned that the child was 14. The child

asked if they could remain friends, and Burgos responded that he was interested in

something more. Specifically, Burgos told her he “want[ed] to be her daddy,” and

he flattered her as “beautiful” and called her “princess.” Soon thereafter, Burgos

and the child engaged in cybersex. Burgos stated that he “want[ed] it bad” and

“[didn’t] care if it’s wrong.”

      In the weeks that followed, Burgos repeatedly engaged the child in cybersex,

sent her pictures of his penis, received multiple sexually explicit pictures of the child,

and instructed her to masturbate using demeaning terms. At one point, Burgos and

the child exchanged “I love yous,” and Burgos told her “Our life will begin soon.”


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Later on, Burgos and the child discussed killing her abusive father. When the child

asked Burgos to “take me away and kill him,” Burgos responded, “I’m serious. I’m

talking about murder.” The discussion then turned graphically violent and sexual,

with Burgos instructing the child to masturbate as they discussed shooting and

stabbing the father and engaging in sex acts near his corpse and while “drenched in

his blood.”

      Based on this conduct, Burgos pled guilty, without a plea agreement, to four

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

one count of production of child pornography, in violation of 18 U.S.C. § 2251(a).

The presentence investigation report (“PSR”) recommended a guideline

imprisonment range of 188 to 235 months.

      There were no objections to the PSR, so sentencing focused solely on an

appropriate sentence under the 18 U.S.C. § 3553(a) sentencing factors. Burgos

requested a total sentence of 180 months, the mandatory minimum for the production

count. Defense counsel offered the testimony and report of a psychologist who had

conducted an evaluation of Burgos, and counsel argued that, despite the provocative

language used in the chats, Burgos would not “actually do any of the things that he

types onto a computer.” Counsel noted that Burgos had depression and poor social

skills and had never had an adult relationship with the opposite sex. The government




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represented that it had no evidence that Burgos intended to meet the child but that

the seriousness of the offense justified a sentence within the guideline range.

      After considering the parties’ arguments and the § 3553(a) factors, the district

court sentenced Burgos to 25 years, or 300 months, in prison. The court explained

that it had considered the guideline range but found that this case was “not a

guideline situation.” The court elaborated that it had originally contemplated a 30-

year sentence based on the “horrible” nature of the offenses, the harm to the victim,

and the danger Burgos posed to the community. In that regard, the court noted that

Burgos had reached out to and “sexualize[d] a 14-year-old, turn[ed] her against her

parents, [and] offer[ed] to murder her father.” During its explanation, the court

identified several facts it did not know, including whether Burgos shared the photos

or conversations with anyone else and whether he was “going to physically make

contact with a minor” or to go through with the murder. The court nevertheless

concluded that a non-guideline sentence was warranted, notwithstanding Burgos’s

arguments in mitigation. The court ultimately decided on a sentence of 25 years to

account for Burgos’s decision to plead guilty.

      Burgos now appeals, challenging his sentence. He says that we should closely

scrutinize the district court’s decision to “completely ignore” the guideline range,

characterizing the court’s reasoning as a “policy” disagreement with the guidelines.

Such closer scrutiny, Burgos maintains, shows that the court relied on aggravating


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factors that were not supported by the evidence, failed to consider mitigating factors,

and imposed a substantively unreasonable sentence.

                                          II.

      We review the substantive reasonableness of a sentence under a deferential

abuse-of-discretion standard. United States v. Moran, 778 F.3d 942, 982 (11th Cir.

2015). The party who challenges the sentence bears the burden of showing that the

sentence is unreasonable. Id.

      The district court at sentencing is tasked with imposing a “sentence sufficient,

but not greater than necessary,” to comply with the purposes of sentencing set forth

in 18 U.S.C. § 3553(a)(2). These purposes include the need to reflect the seriousness

of the offense, promote respect for the law, provide just punishment, deter criminal

conduct, and protect the public from the defendant’s future criminal conduct. See

18 U.S.C. § 3553(a)(2). Other factors the court must consider include the nature and

circumstances of the offense, the history and characteristics of the defendant, and

the applicable guideline range. 18 U.S.C. § 3553(a)(1), (4). We evaluate these same

factors when reviewing a sentence for substantive reasonableness.

      The advisory guideline range, though the “starting point and the initial

benchmark” for sentencing, Gall v. United States, 552 U.S. 38, 49 (2007), “is but

one of many considerations that a court must take into account in exercising its

sentencing discretion,” United States v. Rosales-Bruno, 789 F.3d 1249, 1254 (11th


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Cir. 2015). No particular weight is owed the guideline range. See id. We have

“decided instead that, subject to review for reasonableness, sentencing courts may

determine, on a case-by-case basis, the weight to give the Guidelines, so long as that

determination is made with reference to the remaining section 3553(a) factors that

the court must also consider in calculating the defendant’s sentence.” United States

v. Irey, 612 F.3d 1160, 1217 (11th Cir. 2010) (en banc) (quotation marks omitted).

      In imposing a sentence, the district court must consider all of the § 3553(a)

factors, but it may, in its discretion, weigh some factors more heavily than others.

Rosales-Bruno, 789 F.3d at 1254.          When the court decides after “serious

consideration” that a variance from the guideline range is appropriate based on the

§ 3553(a) factors, it should explain that variance “with sufficient justifications.”

Gall, 552 U.S. at 46–47. The court’s justification must be “compelling enough to

support the degree of the variance and complete enough to allow meaningful

appellate review,” but an “extraordinary justification” is not required. United States

v. Shaw, 560 F.3d 1230, 1238 (11th Cir. 2009) (quotation marks omitted). We must

“give due deference to the district court’s decision that the § 3553 factors, on a

whole, justify the extent of the variance.” United States v. Turner, 626 F.3d 566,

573 (11th Cir. 2010) (quotation marks omitted).

      Because we give district courts considerable discretion in making sentencing

decisions, we will “sometimes affirm the district court even though we would have


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gone the other way had it been our call.” Rosales-Bruno, 789 F.3d at 1254 (quotation

marks omitted). “A district court abuses its considerable 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.” Id. at 1256 (quotation marks omitted).

      The sentence imposed by the district court here is substantively reasonable.

The court considered the parties’ arguments and the facts in the PSR, and it expressly

referenced several § 3553(a) factors, including the history and characteristics of the

defendant, the guideline range, the seriousness of the offense, and the need to protect

the public. After considering all of these factors, the court was convinced that the

guideline range of 188 to 235 months did not adequately reflect the seriousness of

the offense conduct and the danger Burgos posed to the community. For that reason,

the court varied upward from the guideline range by 65 months.

      Giving due deference to the district court, we conclude that the extent of the

variance was justified under the totality of the circumstances and the § 3553(a)

factors. The offense was extremely serious. See United States v. Sarras, 575 F.3d

1191, 1220 (11th Cir. 2009) (“Child sex crimes are among the most egregious and

despicable of societal and criminal offenses, and court have upheld lengthy

sentences in these cases as substantively reasonable.”). Burgos reached out to a 14-


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year-old child online and initiated a cybersexual relationship. Although he knew the

victim was only 14, he called the victim demeaning names, sent her images of his

penis, engaged in cybersex with her, instructed her to masturbate, and received

numerous pornographic images from her. After the victim began calling him

“daddy” at his request, he discussed murdering her actual father and engaging in sex

acts with the child next to her father’s corpse and while killing him. Through these

actions, he exploited the child’s troubled home life for his own sexual gratification,

intertwining the child’s feelings for her father with sex and violence and another

“daddy.” Cf. United States v. Mozie, 752 F.3d 1271, 1289 (11th Cir. 2014) (noting

that sex crimes are “grossly intrusive in the lives of children and . . . harmful to their

normal psychological, emotional, and sexual development.” (quotation marks

omitted)). Based on these disturbing facts, we cannot fault the district court for

concluding that a 300-month, above-guideline sentence was necessary, given the

seriousness of the offense, the harm to the victim, and the need to protect the public.

      Burgos challenges the district court’s finding that he posed a danger. But we

see no abuse of discretion. The court did not, as Burgos suggests, base its sentence

on speculative facts. While the court noted uncertainty about some facts, including

whether Burgos would have made physical contact with the child or gone through

with the murder, the court reasonably concluded that he posed a risk to society based

on the “horrible” nature of his conduct in this case. As the court noted and as we


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have discussed, Burgos reached out to the victim in this case, engaged in predatory

behavior, and suggested he was “serious” about committing murder. Cf. United

States v. Brown, 772 F.3d 1262, 1267 (11th Cir. 2014) (“Given the evidence of

Brown’s expressed desire to kill and to cannibalize children, including multiple

references to at least one child Brown seemed to know, the judge’s conclusion

Brown posed a possible danger was not error.”). Nor did he need to make physical

contact to cause real and lasting harm to a child’s “normal psychological, emotional,

and sexual development.” See Mozie, 752 F.3d at 1289. Accordingly, Burgos has

not shown that the court abused its discretion by considering the need to protect the

public along with other § 3553(a) factors.

      Burgos also contends that the district court failed to consider mitigating

factors adequately, but the weight to give the § 3553(a) factors is committed to the

court’s discretion. See Rosales-Bruno, 789 F.3d at 1254. The record shows that the

court considered all of the relevant factors at sentencing, and we may not reweigh

the factors ourselves. See id. On the whole, Burgos has not shown that the court

abused its discretion by failing to consider factors that were due significant weight,

giving significant weight to improper or irrelevant factors, or committing a clear

error of judgment in weighing the proper factors. See id. at 1256.

      Finally, Burgos wrongly asserts that the upward variance is subject to “closer

scrutiny” because it was based on a policy disagreement with the guidelines. The


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district court did not express any policy disagreement with the child-pornography

guidelines in an ordinary case. Cf. Kimbrough v. United States, 552 U.S. 85, 109

(2007) (“[C]loser review may be in order when the sentencing judge varies from the

Guidelines based solely on the judge’s view that the Guidelines range fails properly

to reflect § 3553(a) considerations even in a mine-run case.” (quotation marks

omitted)). Rather, in concluding that this was “not a guideline situation,” the court

found that the facts of Burgos’s case were extraordinary. In other words, the court

decided that this particular case was “outside the ‘heartland’ to which the

Commission intends individual Guidelines to apply.” Id. (quotation marks omitted).

Because the court was in a superior position to make that determination, its decision

to vary upward is the type that “attract[s] greatest respect.” See id. And for the

reasons explained above, we conclude, giving due deference to the court, that the

extent of the variance is justified by the record and the § 3553(a) factors.

      In sum, we affirm Burgos’s 300-month prison sentence.

      AFFIRMED.




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