Case: 13-15578   Date Filed: 07/21/2014   Page: 1 of 8


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 13-15578
                          Non-Argument Calendar
                        ________________________

                    D.C. Docket No. 1:13-cr-20348-JAL-1

UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                   versus

FRANCO HERNAN RIVAROLA,

                                                          Defendant-Appellant.



                        ________________________

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

                               (July 21, 2014)

Before HULL, WILSON, and ANDERSON, Circuit Judges.

PER CURIAM:

     Franco Hernan Rivarola appeals his 97-month sentence, imposed after he
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pleaded guilty to possession of a visual depiction of a minor engaged in sexually

explicit conduct, in violation of 18 U.S.C. § 2252(a)(4)(B). On appeal, Rivarola

argues that the district court erred in imposing a two-level enhancement, pursuant

to U.S.S.G. § 2G2.2(b)(3)(F), for distribution of child pornography. Rivarola also

argues that his sentence was procedurally and substantively unreasonable.

      Upon review of the record and consideration of the parties’ briefs, we

affirm.

                                          I.

      Rivarola argues that the U.S.S.G. § 2G2.2(b)(3)(F) distribution enhancement

requires evidence of a defendant’s knowledge of how a file sharing network

operates or intent to share child pornography files, and that his use of such a

network on a default setting that enabled other users to access his child

pornography files was insufficient to support the enhancement.

      We review sentencing issues raised for the first time on appeal for plain

error. United States v. Bonilla, 

, 1238 (11th Cir. 2009). An error is

plain if it is obvious and clear under current law. United States v. Olano, 

, 734, 

, 1777, 

(1993).

      Under the invited error doctrine, we will not review an error that a defendant

induced or invited the district court into making. United States v. Brannan, 

, 1306 (11th Cir. 2009). Further, we have often applied the doctrine


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when a party affirmatively stipulates to a course of action in the district court. See,

e.g., United States v. Love, 

, 1157 (11th Cir. 2006) (invited error

when party expressly acknowledged that the court could impose supervised

release); United States v. Thayer, 

, 1355 (11th Cir. 2000) (invited

error when party said it had no objection in response to question from court of

whether certain evidence was admissible). The doctrine is generally based on the

idea that a defendant should not benefit from assenting to a course of action in the

district court as a strategic decision and complaining when that strategy fails.

United States v. Jernigan, 

, 1290 (11th Cir. 2003).

      Distribution of child pornography is a specific offense characteristic

triggering a two-level sentencing enhancement. U.S.S.G. § 2G2.2(b)(3)(F). The

guideline application notes define distribution as:

      any act, including possession with intent to distribute, production,
      transmission, advertisement, and transportation, related to the transfer
      of material involving the sexual exploitation of a minor. Accordingly,
      distribution includes posting material involving the sexual
      exploitation of a minor on a website for public viewing but does not
      include the mere solicitation of such material by a defendant.

U.S.S.G. § 2G2.2 cmt. 1. Neither we nor the Supreme Court have held that a

defendant’s use of a file sharing network in default mode, where downloaded child

pornography files are placed in a shared folder and accessed by others on the

network, must categorically be accompanied by evidence of knowledge or intent in

order to trigger this enhancement. In fact, one of our prior decisions suggests,
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albeit in dicta, that such default use might be sufficient. See United States v.

Vadnais, 

, 1209-10 (11th Cir. 2012) (stating, in dicta, that the record

clearly supported the enhancement, where the defendant used a file sharing

program in default mode and did not dispute that the enhancement applied); but see

United States v. Spriggs, 

, 1287 (11th Cir. 2012) (suggesting, in

dicta, that the enhancement requires a showing of knowledge, at least where there

is no evidence that other users actually downloaded the defendant’s files).

      Under the invited error doctrine, we are precluded from considering

Rivarola’s argument because he affirmatively stipulated to the sentencing

enhancement of which he now complains. 

. Rivarola

objected to the original presentence investigation report’s (“PSI”) five-level

distribution enhancement (U.S.S.G. § 2G2.2(b)(3)(B)) for distribution for the

receipt, or expectation of receipt, of a thing of value, which the revised PSI

replaced with the two-level distribution enhancement (U.S.S.G. § 2G2.2(b)(3)(F)).

Then, at the sentencing hearing, Rivarola stated that no objections survived the

revised PSI and that the parties agreed the two-level enhancement should apply.

Moreover, Rivarola attempted to use the enhancement’s application strategically in

arguing for a downward variance on the basis that this and other enhancements

were applicable in most child pornography cases and thus the guideline range

overstated his culpability. 

.


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      Even if we were to consider Rivarola’s argument, it would fail under plain

error review, because it is not obvious and clear under current law that the two-

level distribution enhancement must be supported by a showing of a defendant’s

knowledge or intent.

                                          II.

      We review the reasonableness of a sentence under a deferential abuse-of-

discretion standard of review. Gall v. United States, 

, 51, 

, 597, 

(2007).

      We first ensure that the sentence is procedurally unreasonable, determining

whether the district court erred in calculating the guideline range, treated the

Sentencing Guidelines as mandatory, failed to consider the 18 U.S.C. § 3553(a)

factors, selected a sentence based on clearly erroneous facts, or failed to adequately

explain the sentence. 

court is generally not required to explicitly

discuss each of the § 3553(a) factors—its consideration of the defendant’s

arguments at sentencing and statement that it took the factors into account is

sufficient. United States v. Sanchez, 

, 936 (11th Cir. 2009). Further,

the district court’s failure to explicitly discuss mitigating evidence presented by the

defendant does not render a sentence unreasonable where it indicates it considered

all the § 3553(a) factors. United States v. Amedeo, 

, 833 (11th Cir.

2007).


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      After determining procedural reasonableness, we examine whether a

sentence was substantively reasonable in light of the totality of the circumstances.

, 128 S.Ct. at 597. We will reverse only if left with the 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. United States v. Irey, 

, 1190 (11th Cir. 2010) (en banc).

      The district court must impose a sentence “sufficient, but not greater than

necessary, to comply with the purposes” listed in 18 U.S.C. § 3553(a)(2), including

the need to reflect the seriousness of the offense, promote respect for the law,

provide just punishment for the offense, deter criminal conduct, protect the public

from the defendant’s future criminal conduct, and provide the defendant with

needed educational or vocational training or medical care. See 18 U.S.C.

§ 3553(a)(2). In imposing a particular sentence, the court must also consider the

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

defendant, the kinds of sentences available, the applicable guideline range, the

pertinent policy statements of the Sentencing Commission, the need to avoid

unwarranted sentencing disparities, and the need to provide restitution to victims.

(3)-(7).




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      The weight given to any specific § 3553(a) factor is committed to the sound

discretion of the district court. United States v. Clay, 

, 743, 747 (11th

Cir. 2007). Further, we accord an ordinary expectation of reasonableness to a

sentence within the guideline range. United States v. Hunt, 

, 746

(11th Cir. 2008).

      Rivarola’s sentence was procedurally reasonable. The district court

explicitly recognized Rivarola’s motion for a downward variance; considered all

the § 3553(a) factors, Rivarola’s arguments, and the Sentencing Commission

report he submitted in support of them; and denied his motion. 

. The court also explicitly discussed Rivarola’s history and characteristics by

citing his lack of a criminal record. Because the court indicated that it considered

all the § 3553(a) factors, it did not need to explicitly discuss mitigating evidence

presented by Rivarola. 

.

      Rivarola’s sentence was also substantively reasonable. Although the district

court may not have weighed certain factors as much as Rivarola desired, its

decision to weigh other factors more heavily, including the seriousness of the

offense, was within its sound discretion. 

. Likewise, because

Rivarola’s offense was committed over a period of 8 months and he possessed a

large number (approximately 50) of child pornography files with heinous content,

it was within the district court’s sound discretion to determine that, contrary to


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Rivarola’s claims, his offense was severe and his conduct was egregious. 

.

      For the above reasons, we affirm Rivarola’s sentence.

      AFFIRMED.




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