            Case: 12-13368   Date Filed: 01/10/2013   Page: 1 of 9

                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-13368
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 2:11-cr-14065-KMM-1



UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

versus

OSCAR R. QUINCOCES,

                     Defendant - Appellant.

                       ________________________

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

                             (January 10, 2013)

Before WILSON, MARTIN and FAY, Circuit Judges.

PER CURIAM:
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         Oscar R. Quincoces appeals his 293-month sentence for one count of

attempting to entice a minor to engage in sexual activity and one count of enticing

a minor to engage in sexual activity, both in violation of 18 U.S.C. § 2422(b), as

substantively unreasonable. Finding no abuse of discretion, we affirm.

                                         A. Background

         In October 2011, an undercover law enforcement officer (UC) who had

adopted the online persona of a 15-year-old boy was approached by Defendant

Quincoces, who identified himself as a 40-year-old male. 1 In the ensuing chat

conversation, Quincoces asked the UC to send sexually explicit photographs of

himself. Quincoces also indicated that he had previously engaged in sexual

behavior with a young boy in his neighborhood. The online conversations

continued for several weeks, and eventually Quincoces and the UC exchanged

phone numbers. They then began communicating via text message. In November

2011, Quincoces and the UC agreed to meet at a Taco Bell restaurant. When

Quincoces arrived and parked in a nearby Walmart for a meeting with the UC

(who he thought was a 15-year-old boy interested in sex), Quincoces was arrested.

A search of his vehicle revealed a package of condoms and several Viagra-type

pills.

1
  The facts contained herein are gleaned from the portions of the presentence investigation report
(PSI) to which Quincoces did not object. “It is the law of this circuit that a failure to object to
allegations of fact in a PSI admits those facts for sentencing purposes.” United States v. Wade,
458 F.3d 1273, 1277 (11th Cir. 2006).
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      A subsequent police investigation of Quincoces’s electronic devices

revealed that he had previously met two minors, known as J.S. and J.P., in person.

J.S., who was 14 years old, advised that he had sent Quincoces nude photographs

of himself, engaged in a sexual webcam session with Quincoces, and eventually

met and engaged in sexual acts with Quincoces. J.P, a 15-year-old boy, advised

that he had sent Quincoces nude photographs of himself and had eventually agreed

to meet Quincoces, though he did not report having been molested by Quincoces.

      The district judge accepted Quincoces’s plea of guilty to the charged

offenses and sentenced Quincoces to 293 months’ imprisonment, at the high end of

the 235–293 month Guideline range. The statutory maximum had been life

imprisonment. At sentencing, Quincoces argued that his actions resulted from a

period of serious depression and requested the low end of the Guideline range.

The district judge rejected this argument. In sentencing Quincoces, the district

judge also considered victim impact statements from the children depicted in

images of child pornography found on Quincoces’s computer. Though the district

judge acknowledged that the images and concomitant victim impact statements did

not constitute relevant conduct of the charged offenses, he nonetheless found them

helpful to his application of the 18 U.S.C. § 3553(a) sentencing factors. The

district judge considered a sentence at the high end of the Guideline range

necessary to deter Quincoces from further criminal conduct and to recognize and


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promote respect for the law. He accordingly sentenced Quincoces to 293 months

followed by a lifetime of supervised release. This appeal followed.

                                      B. Discussion

      1. Jurisdiction

      Before we reach the merits of Quincoces’s appeal, we must satisfy ourselves

of jurisdiction. On June 6, 2012, the district court sentenced and entered judgment

against Quincoces, but left open the question of restitution until a later date.

Quincoces filed a timely notice of appeal on June 19, 2012. We then directed the

parties to provide supplemental briefing as to jurisdiction, and specifically

requested that they address whether the district court’s June 6 judgment was final

and appealable in light of the lower court’s deferral of a final determination on

restitution. On September 5, 2012, this court noted probable jurisdiction, but

explained that a “final determination regarding jurisdiction will be made by the

panel to whom this appeal is submitted on the merits.”

      We agree with the parties that we have jurisdiction. Though the district

court’s judgment order may not have been final prior to its determination on

restitution, Quincoces’s timely notice of appeal ripened into an effective notice of

appeal on the date the district court made its final restitution determination on July

31, 2012. See United States v. Kapelushnik, 306 F.3d 1090, 1093–94 (11th Cir.

2002) (explaining that where a district court leaves open the issue of restitution and


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a timely notice of appeal is filed, the “premature notice of appeal ripen[s] into an

effective notice as of th[e] date” the judgment of conviction later becomes final);

see also Fed. R. App. P. 4(b)(2) (“A notice of appeal filed after the court

announces a decision or order—but before the entry of the judgment or order—is

treated as filed on the date of and after the entry.”).

       2. Reasonableness of Sentence

       We review the sentence imposed by the district court for reasonableness.

United States v. Booker, 543 U.S. 220, 264, 125 S. Ct. 738, 767 (2005). Our

inquiry includes two distinct elements: we first determine whether a sentence is

procedurally reasonable, and then turn our attention to whether the sentence is, on

the whole, substantively reasonable. See United States v. Gonzalez, 550 F.3d

1319, 1323 (11th Cir. 2008) (per curiam). Quincoces does not argue that his

sentence is procedurally unreasonable,2 and our review of the record reveals no

procedural defect, so the only issue before us is the substantive reasonableness of

his 293-month sentence.

       We review the substantive reasonableness of the sentence imposed by the

district court under the “under [the] deferential abuse-of-discretion standard.” Gall

v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591 (2007). We measure


2
  It is axiomatic that a defendant’s failure to raise an issue on appeal abandons that issue, and we
therefore deem Quincoces to have abandoned any claim of procedural unreasonableness. United
States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003).
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reasonableness against the factors outlined in § 3553(a). United States v. Pugh,

515 F.3d 1179, 1188 (11th Cir. 2008). These factors include: (1) the nature and

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

(2) the need for the sentence to reflect the seriousness of the offense, to promote

respect for the law, and to provide just punishment for the offense; (3) the need to

deter criminal conduct; (4) the need to protect the public from further crimes of the

defendant; (5) the need to provide the defendant with needed educational or

vocational training or medical care; (6) the kinds of sentences available; (7) the

Guideline range; (8) policy statements of the United States Sentencing

Commission; (9) the need to avoid unintended sentencing disparities; and (10) the

need to provide restitution to victims. See 18 U.S.C. § 3553(a).

      The party challenging a sentence “bears the burden of establishing that the

sentence is unreasonable in the light of both th[e] record and the factors in

[§] 3553(a).” United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005) (per

curiam). “In our evaluation of a sentence for reasonableness, we recognize that

there is a range of reasonable sentences from which the district court may choose,

and when the district court imposes a sentence within the advisory Guidelines

range, we ordinarily will expect that choice to be a reasonable one.” Id. Thus, we

will vacate and remand for a new sentencing “if, but only if, we are left with the

definite and firm conviction that the district court committed a clear error of


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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); see also Pugh, 515 F.3d at 1194 (observing that “a sentence may

be unreasonable if it is grounded solely on one factor, relies on impermissible

factors, or ignores relevant factors”).

      Quincoces argues that the district court erred in sentencing him to 293

months’ imprisonment because “it gave too much weight to [Quincoces’s]

collateral possession of a few child pornography images and victim impact

statements from the victims of those images” and “failed to give sufficient weight

to [Quincoces’s] history of medical and psychological problems and to his lack of

a serious criminal history.” We disagree.

      First, and with regard to Quincoces’s argument that his crimes were the

product of severe depression and that he lacked a serious criminal history, the

district court expressly indicated that it would consider these facts as part of the

“history and characteristics of the defendant,” a § 3553(a) factor. The district

judge weighed Quincoces’s purported physical and mental health issues at

sentencing; he was simply incredulous at the notion that Quincoces’s depression

carried much potency as a mitigating factor in this particular case. In other words,

the record clearly reflects that the district judge considered Quincoces’s arguments


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in mitigation, and thereafter soundly rejected them. We discern no error in the

district court’s consideration and rejection of Quincoces’s proferred argument at

sentencing.

      Second, and as to Quincoces’s argument that the district court relied too

heavily on images of child pornography for which he was never charged (as well

as the victim impact statements relating to those images), we are similarly

unpersuaded. There is no limitation on the evidence of a defendant’s background,

character, or conduct that the sentencing judge may properly consider in imposing

an appropriate sentence. See 18 U.S.C. § 3661; see also United States v. Lindsey,

482 F.3d 1285, 1294 (11th Cir. 2007) (noting that “Booker does not forbid a

district court from considering criminal acts for which a defendant has not been

charged or has been acquitted as long as those acts are proved by a preponderance

of the evidence”). At sentencing, the district judge expressly noted that while the

child pornography and victim impact statements did “not constitute relevant

conduct,” he was still required “to consider[] information from whatever source

that will aid the Court in fashioning an appropriate sentence and considering the

[§] 3553 factors.” Therefore, and insofar as Quincoces argues that it was error for

the district court to consider the victim impact statements and the depraved images

found on his computer, he is wrong.




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       In sum, our review of the record reveals that the district judge imposed

Quincoces’s sentence only after considering the parties’ arguments, the Guideline

range, and the § 3553(a) factors, including the nature and circumstances of the

offense, the history and characteristics of the defendant, the need to promote

respect for the law, and the need to provide adequate deterrence. See Rita v.

United States, 551 U.S. 338, 356, 127 S. Ct. 2456, 2468 (2007) (“[W]hen a judge

decides simply to apply the Guidelines to a particular case, doing so will not

necessarily require lengthy explanation.”). This sentence was reasonable.

      “As we have stated before, ‘[c]hild sex crimes are among the most egregious

and despicable of societal and criminal offenses.’” Irey, 612 F.3d at 1206 (quoting

United States v. Sarras, 575 F.3d 1191, 1220 (11th Cir. 2009) (affirming as

reasonable a 100-year sentence for a first offender who sexually abused a 13-year-

old girl and photographed the crime))). It is no surprise, then, that such heinous

conduct should carry with it a stiff punishment. The judgment of the district court

is affirmed.

               AFFIRMED.




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