United States v. Francisco Cubero
754 F.3d 888
| 11th Cir. | 2014Background
- Defendant Francisco Cubero pleaded guilty to one count of distributing and two counts of possessing child pornography after using peer-to-peer software to download and share images and videos, including material depicting infants and pre‑teens in violent sexual acts.
- Law enforcement downloaded 17 files from Cubero’s shared folder; his computer contained hundreds of images and more than a dozen videos; he also had CD‑ROMs with images.
- District court calculated a Guidelines offense level 34 (base 22 plus multiple enhancements; three‑level acceptance reduction), Criminal History I, yielding a Guidelines range of 151–188 months.
- The court applied a +2 distribution enhancement (U.S.S.G. § 2G2.2(b)(3)(F)), denied a § 2G2.2(b)(1) receipt‑only reduction, and denied a downward variance, sentencing Cubero to 151 months imprisonment and life supervised release (concurrent statutory maxima on possession counts).
- Cubero appealed, arguing procedural and substantive unreasonableness: impermissible double counting (distribution enhancement), entitlement to the receipt‑only reduction, insufficient consideration of § 3553(a) factors and a Sentencing Commission report recommending revision of § 2G2.2.
- The Eleventh Circuit affirmed, holding the distribution enhancement was not impermissible double counting, the receipt‑only reduction did not apply, the district court properly considered § 3553(a) factors and explained its decision, and the Sentencing Commission’s 2013 report did not invalidate or compel rejection of § 2G2.2.
Issues
| Issue | Cubero’s Argument | Government’s / Court’s Argument | Held |
|---|---|---|---|
| Whether applying the § 2G2.2(b)(3)(F) +2 "distribution" enhancement to a § 2252(a)(2) conviction is impermissible double counting | The base offense covers § 2252(a)(2) conduct; distribution is an element here, so the +2 enhancement double counts the same conduct | § 2252(a)(2) covers receipt, reproduction, or distribution; base level covers multiple conduct types and the Commission intended cumulative enhancements to distinguish receipt vs distribution | Not double counting; enhancement valid and properly applied |
| Whether Cubero was entitled to the § 2G2.2(b)(1) two‑level decrease for receipt/solicitation only | He argued his conduct fit "receipt/solicitation" and lacked intent to traffic/distribute | Cubero admitted sharing files in a shared folder; peer‑to‑peer sharing and making files accessible satisfies distribution | Reduction not warranted; district court correctly denied it |
| Procedural reasonableness: did the district court adequately consider § 3553(a) factors and explain denial of variance? | Cubero claimed the court treated Guidelines as presumptive, failed to consider his mitigation and the Commission criticisms, and gave inadequate reasons for denying a downward variance | Record shows the court reviewed submissions, heard arguments, calculated Guidelines, acknowledged discretion to vary, and provided detailed reasons tied to image severity, volume, duration, and victimization | Procedurally reasonable; no abuse of discretion |
| Effect of the Sentencing Commission’s 2013 report criticizing § 2G2.2 | Report validates Cubero’s request for a downward variance and requires remand or greater explanation | Report recommends revision but does not invalidate the guideline; district courts may consider it but are not compelled to vary; existing law governs | Report does not render § 2G2.2 invalid or require remand; sentence affirmed |
Key Cases Cited
- United States v. Zaldivar, 615 F.3d 1346 (11th Cir.) (standard of review for Guidelines facts and application)
- United States v. Dudley, 463 F.3d 1221 (11th Cir. 2006) (double‑counting analysis; presumption that Commission intended cumulative application)
- United States v. Reingold, 731 F.3d 204 (2d Cir.) (§ 2252(a)(2) proscribes receipt or distribution; Guidelines distinguish conduct)
- United States v. Spriggs, 666 F.3d 1284 (11th Cir. 2012) (placing files in a file‑sharing folder satisfies distribution under § 2G2.2)
- United States v. Irey, 612 F.3d 1160 (11th Cir. en banc) (role of Guidelines in reducing disparity and interpreting enhancements)
- Rita v. United States, 551 U.S. 338 (2007) (district court need not provide exhaustive explanation for within‑Guidelines sentence)
- Kimbrough v. United States, 552 U.S. 85 (2007) (district courts may vary based on policy disagreement with Guidelines)
- United States v. Wayerski, 624 F.3d 1342 (11th Cir.) (prior rejection of similar challenges to child pornography Guidelines)