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                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-13544
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 0:12-cr-60002-JIC-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

ANDREW ATIAS,

                                                          Defendant-Appellant.

                       ________________________

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

                              (May 14, 2013)

Before WILSON, MARTIN and FAY, Circuit Judges.

PER CURIAM:
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      Andrew Atias appeals his 151-month sentence and supervised release

conditions after pleading guilty to receipt of child pornography, in violation of

18 U.S.C. § 2252(a)(2) and (b)(1). On appeal, Atias first contends that his

sentence is procedurally unreasonable because the district court erred by

considering the guideline range to be “presumptively reasonable.” Second, he

asserts that his sentence is procedurally unreasonable because the court failed to

consider the factors in 18 U.S.C. § 3553(a) or his sentencing arguments, and failed

to adequately explain the sentence. Third, Atias argues that the internet and

computer restrictions included in his supervised release are procedurally and

substantively unreasonable. For the reasons that follow, we affirm.

                                          I.

      The evidence showed that Atias possessed, and was held accountable for,

over 37,000 images of child pornography, which included images of babies,

toddlers, and young children being raped by adult males, as well as other sadistic

and masochistic conduct involving young children. At sentencing, Atias requested

a variance based on his age (52 years); he also disagreed with the policies

underlying the child pornography guidelines, and argued that they resulted in

substantial base-offense level enhancements in most cases. He also objected to

two recommended supervised release conditions: a prohibition against using a




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computer with internet access without court approval and a prohibition against

possessing and using a computer without court approval.

      At sentencing, the district court noted the “horrific” and “unthinkable”

nature of the images Atias possessed, and that the victims’ suffering never ended.

The court also stated: “I do view the Guidelines as presumptively reasonable,” but

acknowledged that it departed on many occasions depending on the 18 U.S.C. §

3553(a) factors. The court found that a 151-month sentence at the low end of the

advisory guideline range was reasonable, and imposed a 20-year term of

supervised release that included the internet and computer restrictions. Atias made

a general objection to the reasonableness of the sentence.

                                          II.

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

discretion standard of review. Gall v. United States, 

, 41, 

, 591 (2007). The party challenging the sentence bears the burden of proving

that the sentence is unreasonable. United States v. Talley, 

, 788 (11th

Cir. 2005) (per curiam). An argument raised for the first time on appeal may be

reviewed for plain error. United States v. Bacon, 

, 777 (11th Cir.

2010) (per curiam). The purpose of the plain error rule is “to enforce the

requirement that parties lodge timely objections to errors at trial so as to provide

the district court with an opportunity to avoid or correct any error, and thus avoid


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the costs of reversal and a retrial.” United States v. Turner, 

, 1275

(11th Cir. 2007) (emphasis in original).

      To establish plain error, an appellant must show “that there was an (1) error

(2) that is plain and (3) that affects substantial rights.” 

(internal quotation marks omitted). If these elements are present, we may exercise

our discretion to notice an unpreserved error, but only if “the error seriously affects

the fairness, integrity, or public reputation of judicial proceedings.” 

omitted). In order to be plain, the error must be clear “under

controlling precedent or in view of the unequivocally clear words of a statute or

rule.” United States v. Schmitz, 

, 1270–71 (11th Cir. 2011) (internal

quotation marks omitted). To demonstrate that an error affected a substantial right,

the appellant must show “a reasonable probability of a different result but for the

error.” United States v. Rodriguez, 

, 1382 (11th Cir. 2010) (internal

quotation marks omitted). When the effect of an error on the district court’s result

is uncertain or indeterminate, however, the appellant has not met his burden. 

reasonable, the district court must properly calculate the

guideline range, treat the Guidelines as advisory, consider the § 3553(a) factors,

not consider clearly erroneous facts, and adequately explain the chosen sentence.

, 128 S.Ct. at 597. A sentencing court may not automatically

presume that the applicable guidelines range is reasonable. Nelson v. United


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States, 

, 352, 

, 892 (2009). “If a district court applies

the guidelines as though they were mandatory or treats the range as presumptively

reasonable, that is procedural error.” United States v. Hill, 

, 880 (11th

Cir. 2011), cert. denied, 

(2012).

      Here, because Atias did not specifically object to the district court’s

purported application of a formal “presumption” in favor of the guideline range,

we review this issue for plain error. Although the court’s statement that the

Guidelines were presumptively reasonable constitutes an error that is plain, Atias

fails to demonstrate that the error affected his substantial rights, as there is no

indication in the record that the district court would have otherwise granted his

request for a variance below his low-end sentence.

                                           III.

      As noted above, to be procedurally reasonable, the district court must

properly calculate the guideline range, treat the Guidelines as advisory, consider

the § 3553(a) factors, not consider clearly erroneous facts, and adequately explain

the chosen sentence. 

, 128 S. Ct. at 597. Here, the district

court’s acknowledgment that it had considered the § 3553(a) factors and the

parties’ arguments is sufficient; the court does not need to “state on the record that

it has explicitly considered each of the [§] 3553(a) factors or to discuss each of the

[§] 3553(a) factors.” 

(internal quotation marks omitted).


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When a case is “conceptually simple . . . and the record makes clear that the

sentencing judge considered the evidence and arguments,” a brief statement

regarding the reasons for imposing a particular sentence is legally sufficient. Rita

v. United States, 

, 359, 

, 2469 (2007). Furthermore,

“[n]o member of this [c]ourt has ever before indicated that a sentencing judge is

required to articulate his findings and reasoning with great detail or in any detail

for that matter.” United States v. Irey, 

, 1195 (11th Cir. 2010) (en

banc).

         Here, the district court specifically stated that it had considered the parties’

arguments and the § 3553(a) factors. The court commented on the seriousness of

the crime charged—the images and videos found on Atias’s computer were

“horrific” and involved young children. See United States v. Scott, 

,

1329–30 (11th Cir. 2005) (finding the district court adequately addressed the §

3553(a) factors when it considered “‘all the obvious things that you would

normally take in consideration,’ particularly, ‘the age of the child.’”); United States

v. Vautier, 

, 761 (11th Cir. 1998) (holding that district court

adequately considered the § 3553(a) factors when it “cited defendant’s

demonstrated violence and . . . all the other considerations that went in to the

establishment of this defendant’s sentence.” (alterations in original) (internal




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quotation marks omitted)). The court adequately explained the reasons for the

sentence; no further explanation was needed.

                                         IV.

      We review the imposition of a special condition of supervised release for

abuse of discretion. United States v. Taylor, 

, 1283 (11th Cir. 2003)

(per curiam). We find an abuse of discretion only when there is a “definite and

firm conviction that the [district] court committed a clear error of judgment in the

conclusion it reached.” 

(internal quotation marks

omitted).

      A district court may impose any condition of supervised release it deems

appropriate as long as it comports with the § 3553(a) factors, involves no greater

deprivation of liberty than reasonably necessary to achieve the purposes set forth in

§ 3553(a), and is consistent with any pertinent policy statements issued by the

Sentencing Commission. 

conditions on supervised

release, a district court must consider the nature and circumstance of the offense,

the history and characteristics of the defendant, the need for adequate deterrence,

and the need to protect society at large. U.S.S.G. § 5D1.3(b). Each factor is an

independent consideration to be weighed, and as such, a special condition need not

be supported by each factor. United States v. Moran, 

, 1139 (11th

Cir. 2009). Although a condition of supervised release should not unduly restrict a


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defendant’s liberty, a condition is not invalid just because it affects the ability to

exercise a constitutionally protected right. 

. In addition,

“[c]onditions of supervised release are not vague and overbroad when they are

‘undeniably related’ to the sentencing factors.” United States v. Nash, 

, 1307 (11th Cir. 2006) (per curiam) (quoting 

).

      In United States v. Zinn, we upheld a three-year internet restriction, noting

that the defendant could access the internet after obtaining permission from his

probation officer. 

, 1092–93 (11th Cir. 2003). In discussing the

restriction, we noted the “strong link between child pornography and the Internet,

and the need to protect the public, particularly children, from sex offenders.” 

also noted that the Fifth Circuit had upheld a complete ban on internet

usage. 

again upheld a three-year internet restriction while on

supervised release, prohibiting the use of an internet-connected computer without

prior 

, 1140–41. We noted that, “[a]lthough the

internet provides valuable resources for information and communication, it also

serves as a dangerous forum in which an offender can freely access child

pornography and communicate with potential victims.” 

noted above, the district court considered the parties’ arguments and the

§ 3553(a) factors, and adequately explained the sentence, such that Atias has failed


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to show that the court’s imposition of the computer and internet restrictions was

procedurally unreasonable. Furthermore, the imposition of those restrictions was

not substantively unreasonable, as Atias still may petition the court for approval to

use either a computer or the internet, and the restrictions were related to the

“horrific” and “unthinkable” nature and circumstances of the offense, as well as the

need for deterrence and public protection.

      AFFIRMED.




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