Case: 15-15210   Date Filed: 10/05/2016   Page: 1 of 15


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-15210
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 3:15-cr-00026-MCR-1


UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee

                                  versus

PAUL R. BLOOM,

                                                           Defendant-Appellant

                       ________________________

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

                             (October 5, 2016)

Before HULL, MARCUS, and ROSENBAUM, Circuit Judges.

PER CURIAM:
             Case: 15-15210     Date Filed: 10/05/2016   Page: 2 of 15


      Paul Bloom received a total sentence of 360 months of imprisonment, the

statutory maximum, after pleading guilty to both producing and receiving child

pornography. He challenges the reasonableness of his sentence on appeal. He

argues that the district court abused its discretion in two main ways: (1) by basing

his sentence on an unsupported factual finding; and (2) by relying on an improper

factor in arriving at a sentence greater than necessary to accomplish the goals of

sentencing. After careful review, we affirm Bloom’s sentence.

                                         I.

      Bloom came to the attention of law enforcement after officers, using a peer-

to-peer file-sharing network, downloaded several videos depicting child

pornography from an IP address associated with Bloom’s residence.              In a

subsequent search of Bloom’s home pursuant to a warrant, law enforcement seized

electronic devices containing over 850 videos and 2,000 images of child

pornography downloaded over a three-year period.           Law enforcement also

discovered that Bloom had produced child pornography several months earlier

using a nine-year-old girl he had been babysitting.

      Under a written plea agreement, Bloom pled guilty to one count of

knowingly and intentionally producing child pornography, in violation of 18

U.S.C. § 2251(a), (e) (“Count One”), and one count of knowingly receiving child

pornography, in violation of 18 U.S.C. § 2252A(a)(2), (b)(1) (“Count Two”).


                                         2
             Case: 15-15210      Date Filed: 10/05/2016   Page: 3 of 15


Counts One and Two each had applicable statutory minimum and maximum

sentences: the range for Count One was 15 to 30 years of imprisonment; and the

range for Count Two was 5 to 20 years of imprisonment.

      Before sentencing, a probation officer prepared a presentence investigation

report (“PSR”), which determined a combined guideline range of 262 to 327

months of imprisonment based on a total offense level of 39 and a criminal history

category of I. No objections were filed. The district court adopted the PSR and its

guideline range at sentencing.

      The majority of the sentencing hearing concerned the parties’ arguments for

an appropriate sentence. The government argued for a guideline-range sentence,

while Bloom contended that a sentence at or near the statutory minimum on Count

One (180 months) was sufficient.

      In support of its request for a guideline sentence, the government presented

two pieces of evidence. First, the government introduced a disc containing files

retrieved from Bloom’s electronic devices, which included a video Bloom

produced using the nine-year-old victim. The government played a portion of this

video at sentencing.     According to the PSR and the parties’ comments at

sentencing, the video depicts Bloom pulling down the underwear of the victim,

exposing her vagina and anus, and then sexually manipulating her vagina and anus

with his hand.    Second, the government introduced a sex doll of child-like


                                          3
                  Case: 15-15210   Date Filed: 10/05/2016   Page: 4 of 15


proportions that was seized from Bloom’s home. The doll had a used condom

attached to it.

       Bloom requested a sentence well below the guideline range, arguing that the

child-pornography guideline was too harsh and that there were various mitigating

factors about his conduct. He asserted that his touching of the victim was an

isolated incident, that he never communicated with others about child

pornography, and that he did not distribute the child pornography he produced and

even attempted to make his files inaccessible to others on the peer-to-peer network.

Bloom also asked the court to take into account that, in his view, the victim was

asleep during the sexual assault, so the psychological impact on the victim was

likely to be minimal.

       As Bloom’s counsel stressed the isolated nature of the sexual assault, the

district court interjected that the same sexual act, had it occurred on federal

property or had Bloom crossed state lines, would have subjected Bloom to a

mandatory sentence of no less than 30 years in prison under 18 U.S.C. § 2241(c).

Moreover, after watching a portion of the video, the district court found it

implausible that the victim had “slept through that.”          In any case, the court

explained, “the conduct occurred” whether the victim was asleep or not. Bloom

responded that the court should take into account the potential impact on the victim

in comparing the severity of Bloom’s conduct to other child-pornography crimes.


                                            4
             Case: 15-15210     Date Filed: 10/05/2016   Page: 5 of 15


      The district court also noted that it was particularly troubled by Bloom’s

cartoons depicting child pornography. For example, one cartoon included text

representing that a child engaged in sexual acts with her father because “she didn’t

want to disobey [him], she didn’t want to get spanked.” These cartoons, according

to the court, suggested more than an interest in possessing child pornography for

his own use, because they “normalize[] child abuse in almost in a teaching fashion,

describe[] to children that this type of behavior is okay. That suggests to me that

this probably wasn’t a first-time incident.” Bloom responded that there was no

evidence he had ever used the cartoons to “groom” a minor. The court replied,

“But what other use? What other use? I mean, what other use?” The judge further

elaborated, “he’s got plenty of the real thing. He’s got, like I said, more—he’s got

a lifetime, in my opinion, of child pornography, real images. He doesn’t need

cartoons for his own sexual gratification.”

      After hearing personally from Bloom, who expressed remorse and shame for

his conduct, the district court pronounced sentence. The court first discussed the

nature and circumstances of the offenses, including the “unspeakable” acts

depicted in the files Bloom downloaded, which the court stated were “some of the

worst” and “most disturbing” it had seen described in a PSR, the “extreme number

of images” Bloom possessed, the three-year period of time Bloom had been

downloading child pornography, and the fact that Bloom had produced child


                                          5
              Case: 15-15210       Date Filed: 10/05/2016   Page: 6 of 15


pornography in which he sexually assaulted a child in his care.             The court

expressly rejected Bloom’s assertion that the victim was asleep during the

molestation, finding that she would likely have to live with the fear and

degradation caused by Bloom’s abuse. All of these factors combined, the court

stated, “require[d] a very severe sentence.”

      Next, the district court briefly discussed the need for the sentence to deter

others from engaging in similar conduct and then turned to the need for the

sentence to protect the public from the “extreme risk” Bloom posed to society.

The court found that the cartoons Bloom possessed indicated that he viewed child

sexual abuse as something normal and not harmful to children, a perception

reinforced by his comments at sentencing. Specifically, in expressing remorse

during allocution, Bloom stated that he was thankful no minor had been injured by

his actions, which told the court that he was minimizing his own conduct and had

“very poor insight” into what he had done. This, in turn, the court concluded,

suggested “the need for a very serious and severe sentence.” Finally, the court

cited the child-sized sex doll, which Bloom used to satisfy himself sexually despite

being in an apparent sexual relationship with his adult girlfriend, who was

pregnant. Taken together, the court stated, nothing in the record mitigated the

court’s concern that Bloom’s sexual attraction to children “will ever be something

that [he] can get control over.”


                                            6
              Case: 15-15210     Date Filed: 10/05/2016     Page: 7 of 15


      For these reasons and the need to protect the public “in particular,” the

district court imposed a total sentence of 360 months of imprisonment,

representing a 33-month variance above the high end of the guideline range.1 The

sentence, the court explained, took into account “in a very measurable way the

sexual act that was committed on the child.” The court again noted that Bloom

would have faced a mandatory term of no less than 30 years, had he engaged in the

same conduct on federal property or crossed state lines.

      Bloom objected to the above-guideline sentence and again addressed the

matter of whether the victim was awake during the sexual assault. The district

court responded that its finding that the victim was awake was based upon its

“observation of the video and just common sense.” Without that specific finding,

however, the court stated that it would have imposed a sentence of 327 months,

within the guideline range. Bloom now appeals.

                                           II.

      We review the reasonableness of a sentence, including a sentence above the

advisory guideline range, under a deferential abuse-of-discretion standard. United

States v. Irey, 

, 1186, 1188–89 (11th Cir. 2010) (en banc). In

reviewing a sentence for reasonableness, we first ensure that the sentencing court

committed no significant procedural error, such as failing to calculate the guideline

      1
          Bloom received a sentence of 240 months on Count Two, the statutory maximum for
that offense, to run concurrently with the 360-month sentence on Count One.
                                           7
              Case: 15-15210    Date Filed: 10/05/2016    Page: 8 of 15


range, failing to consider the 18 U.S.C. § 3553(a) sentencing factors, selecting a

sentence based on clearly erroneous facts, or failing to adequately explain the

chosen sentence—including an explanation for any deviation from the guideline

range. Gall v. United States, 

, 51, 

, 597 (2007). Next,

we examine the substantive reasonableness of the sentence in light of the totality of

the circumstances. 

expressly challenges the substantive reasonableness of his

sentence only, his contention that the district court based its sentencing decision on

an unsupported factual finding appears to fall within the rubric of procedural

reasonableness—i.e., a sentence based on clearly erroneous facts. Accordingly, we

first review whether substantial evidence supports the court’s factual finding that

the child victim did not sleep through the sexual touching. Second, we address the

substantive reasonableness of the sentence.

                                         A.

      We review the district court’s factual findings for clear error. United States

v. Creel, 

, 1359 (11th Cir. 2015). For a factual finding to be clearly

erroneous, we must be left with a definite and firm conviction that a mistake has

been made based on the record as a whole. 

to the district court’s

factual findings because “the district court is in the best position to hear the

evidence and draw reasonable inferences therefrom in making specific factual


                                          8
             Case: 15-15210    Date Filed: 10/05/2016   Page: 9 of 15


findings.” United States v. Wilson, 

, 218 (11th Cir. 1993). “Where a

fact pattern gives rise to two reasonable and different constructions, the

factfinder’s choice between them cannot be clearly erroneous.” United States v.

Almedina, 

, 1315 (11th Cir. 2012).

      At a minimum, factual findings must be supported by “substantial evidence”

in the record. United States v. Ellisor, 

, 1273 n.25 (11th Cir. 2008).

That requires some external source supporting the district court’s finding, such as

factual admissions during a guilty plea, undisputed statements in the PSR, or

evidence presented at trial or during the sentencing hearing. See United States v.

Martinez, 

, 1027 (11th Cir. 2009); United States v. Polar, 

, 1255 (11th Cir. 2004). Factual findings “cannot be based on speculation,”

United States v. Newman, 

, 1238 (11th Cir. 2010), or on conclusory

leaps in logic unsupported by the evidence, but the district court may draw

reasonable inferences from the facts in the record, 

. To

draw such inferences, the court may rely on “common sense and ordinary human

experience,” United States v. Philidor, 

, 885 (11th Cir. 2013), as well

as the court’s “day-to-day experience in criminal sentencing,” United States v.

Melvin, 

, 1322 (11th Cir. 1999).

      Bloom asserts that the video fails to establish that the victim was awake, and

that the district court’s reference to “common sense” was simply unsupported


                                         9
               Case: 15-15210       Date Filed: 10/05/2016      Page: 10 of 15


speculation. However, the video upon which the court based its finding has not

been included as part of the record on appeal. As the appellant, the burden was on

Bloom to ensure the record on appeal is complete, which means bringing before

this court all parts of the proceedings below necessary for a determination of the

validity of any claimed error. Pensacola Motor Sales Inc. v. E. Shore Toyota,

LLC, 

, 1224 (11th Cir. 2012); see Fed. R. App. P. 10(b)(2) (“If the

appellant intends to urge on appeal that a finding or conclusion is unsupported by

the evidence or is contrary to the evidence, the appellant must include in the record

a transcript of all evidence relevant to that finding or conclusion.”); Borden, Inc. v.

Fla. E. Coast Ry. Co., 

, 758 (11th Cir. 1985) (applying Rule 10(b)(2)

to exhibits and depositions). “[W]here a failure to discharge that burden prevents

us from reviewing the district court’s decision we ordinarily will affirm the

judgment.” Pensacola Motor Sales 

(quoting Selman v.

Cobb Cty. Sch. Dist., 

, 1333 (11th Cir. 2006)). We find that to be

the case here. Without knowing exactly what the district court observed in the

video, we cannot say whether the district court’s inference was reasonable or not,

and hence, whether the district court’s factual finding was clearly erroneous.2




       2
          Nevertheless, we note that the district court and the parties described substantial
manipulation of the child’s vagina and anus, suggesting that the district court’s conclusion that
no child could sleep through the actions was not clearly erroneous.
                                               10
             Case: 15-15210    Date Filed: 10/05/2016   Page: 11 of 15


Accordingly, we must affirm the district court’s factual finding and reject Bloom’s

construed challenge to the procedural reasonableness of his sentence.

                                         B.

      In sentencing a defendant, district courts must consider the sentencing

factors listed in 18 U.S.C. § 3553(a) and “impose a sentence sufficient, but not

greater than necessary, to comply with the purposes” of sentencing listed in

§ 3553(a)(2). 18 U.S.C. § 3553(a)(2). These purposes are retribution (“to reflect

the seriousness of the offense, to promote respect for the law, and to provide just

punishment for the offense”), deterrence (“to afford adequate deterrence to

criminal conduct”), incapacitation (“to protect the public from further crimes of the

defendant”), and rehabilitation (“to provide the defendant with needed educational

or vocational training, medical care, or other correctional treatment in the most

effective manner”). See 18 U.S.C. § 3553(a)(2). The district court also must

consider, among other factors, 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, and the need to avoid unwanted sentencing disparities. 18 U.S.C.

§ 3553(a)(1), (3)–(7).

      Generally, the weight given to any specific § 3553(a) factor is left to the

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

, 743


                                         11
             Case: 15-15210     Date Filed: 10/05/2016    Page: 12 of 15


(11th Cir. 2007). However, a district court can abuse its discretion by giving an

improper or irrelevant factor substantial weight or by committing a clear error of

judgment in balancing the proper factors. 

.

      Where a district court imposes an upward variance based upon the § 3553(a)

factors, it should explain why the variance is appropriate, and “the justification for

the variance must be sufficiently compelling to support the degree of the variance.”

(internal quotation marks omitted). Although we consider the extent of

the deviation, we must give appropriate deference to the district court’s decision

that the § 3553(a) factors justify the variance. 

challenging the

sentence bears the burden of showing that it is unreasonable in light of the record

and the 18 U.S.C. § 3553(a) sentencing factors. United States v. Tome, 

, 1378 (11th Cir. 2010).

      Here, Bloom has not established that his total sentence is substantively

unreasonable. First, we are not persuaded that the district court’s reference to the

thirty-year statutory minimum sentence for aggravated sexual abuse, in violation of

18 U.S.C. § 2241(c), amounted to consideration of an improper or irrelevant factor.

As an initial matter, the district court was entitled to consider as relevant conduct at

sentencing the undisputed fact that Bloom engaged in a sexual act with a nine-

year-old child in his care, even though that conduct was not an element of either

offense of conviction. See U.S.S.G. § 1B1.3. Furthermore, the record reflects that


                                          12
             Case: 15-15210        Date Filed: 10/05/2016   Page: 13 of 15


the district court raised the statutory minimum under § 2241(c) primarily in

response to Bloom’s argument that mitigation was warranted in light of the

isolated nature of the incident.

      As the district court correctly pointed out, Congress mandated a thirty-year

sentence for a similar, single incident occurring within federal jurisdiction. See 18

U.S.C. §§ 2241(c), 2246(2)(D).         The only thing that separated Bloom from a

defendant convicted of violating § 2241(c), the court explained, was a

“jurisdictional hook,” not the seriousness of the underlying factual conduct. So

even if Bloom abused a single child, that was hardly a basis for mitigation.

Whether these considerations fall under the nature and circumstances of the

offense, § 3553(a)(1), or the need to avoid unwarranted sentencing disparities

between defendants who engaged in similar conduct, § 3553(a)(6), we see no error

in the district court’s reasoning, and we conclude that the district court did not

abuse its discretion by giving an improper or irrelevant factor substantial weight.

      Moreover, the district court’s sentencing decision was based on a number of

other factors, many of which appear much more significant to the court’s calculus.

The record reflects that the court thoroughly considered the § 3553(a) factors and

found that many supported the need for a very severe sentence. With regard to the

nature and characteristics of the offense, the court cited the “unspeakable acts”

depicted in the videos, the “extreme” number of videos and images Bloom


                                            13
             Case: 15-15210    Date Filed: 10/05/2016   Page: 14 of 15


possessed (850 videos and 2,000 images), the length of time he had been

downloading child pornography (over three years), and the fact that he abused a

child who was in his care in order to produce child pornography.           Also of

particular importance to the court was the need to protect the public, based on

Bloom’s cartoons that depicted child sexual abuse as normal and were of the type

often used in child-sexual-abuse cases to “groom” children for sexual abuse,

Bloom’s comments at sentencings, and the child-sized sex doll. Bloom has put

forth no argument challenging the district court’s balancing of these factors as

unreasonable.

      We have said before, and we say again, that “[c]hild sex crimes are among

the most egregious and despicable of societal and criminal offenses.” United

States v. Sarras, 

, 1220 (11th Cir. 2009). We “have upheld lengthy

sentences in these cases as substantively reasonable.” 

reasonable

a 100-year sentence for a first-time offender who sexually abused a single thirteen-

year-old girl and took photos of it); United States v. Johnson, 

, 1244

(11th Cir. 2006) (affirming as reasonable a 140-year sentence for an offender with

few prior offenses who produced, possessed, and distributed child pornography);

see also 

(describing the “devastating and long-lasting

effects” childhood sexual abuse has on its victims). Bloom’s victims included not

just the child he sexually assaulted but also the victims depicted in the child


                                        14
             Case: 15-15210    Date Filed: 10/05/2016   Page: 15 of 15


pornography he possessed and distributed. See 

(“Every

instance of viewing images of child pornography represents a renewed violation of

the privacy of the victims and a repetition of their abuse.” (quoting Adam Walsh

Child Protection and Safety Act of 2006, Pub. L. No. 109–248, § 501(2)(D), 120

Stat. 587, 624 (2006) (codified at 18 U.S.C. § 2251 note))).

      In sum, Bloom has not shown that his total sentence of 360 months of

imprisonment, representing a 33-month variance above the high end of his

guideline range of 262 to 327 months, was substantively reasonable under the

totality of the circumstances. Accordingly, we affirm Bloom’s total sentence.

      AFFIRMED.




                                         15