Case: 16-11762   Date Filed: 01/19/2017   Page: 1 of 6


                                                      [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-11762
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 6:15-cr-00235-CEM-TBS-1



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

versus

JOSE E. ELOSEGUI,

                                              Defendant - Appellant.

                       ________________________

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

                             (January 19, 2017)

Before MARCUS, JORDAN, and FAY, Circuit Judges.

PER CURIAM:
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      Jose Elosegui appeals his 151-month sentence after pleading guilty to one

count of receipt of child pornography (Count 1) and one count of possession of

child pornography (Count 2), both in violation of 18 U.S.C. § 2252. Mr. Elosegui

argues that his sentence was substantively unreasonable because the district court

failed to adequately consider the mitigating factors that he presented at sentencing.

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

                                          I

      Because we write for the parties, we assume their familiarity with the

underlying record and recite only what is necessary to resolve this appeal.

      In October of 2015, a Homeland Security special agent executed a search

warrant at Mr. Elosegui’s home after detecting an IP address that was sharing a

number of videos depicting graphic sexual conduct involving prepubescent

children. The agent interviewed Mr. Elosegui, who initially denied using

file-sharing software, but later admitted to using it to download child pornography.

He also admitted to downloading child pornography for years. Agents seized a

laptop computer and external hard drive from his residence and found dozens of

images and videos of child pornography.

      Agents also found a number of items of interest during the search of

Mr. Elosegui’s apartment, including magazine clippings of clothed children

coupled with clippings from adult pornography, a small pink MP3 player,


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children’s cartoon DVDs, a tripod set up between his bed and bedroom window,

and lengthy lists of search terms known to be used to find child pornography

online, as well as a pink girl’s bicycle outside his front door. Mr. Elosegui stated

that he found the MP3 player at the airport, that the cartoon DVDs were for his

own use, that he used the tripod in conjunction with a telescope to look at the stars,

and that he found the bicycle in the trash. He admitted the search terms were used

to find child pornography and that he used the cut-outs to pretend the adults were

performing sex acts on the children.

       The PSI held Mr. Elosegui responsible for 1,619 videos 1 and 185 images

containing child pornography. The PSI recommended a base-offense level of 22

under USSG § 2G2.2(a)(2). It also recommended several USSG § 2G2.2(b)

enhancements,2 as well as a 3-level reduction under USSG §§ 3E1.1(a) and (b) for

acceptance of responsibility. The PSI recommended a total offense level of 34 and

a criminal history category of I, resulting in an advisory guideline range of 151 to

188 months’ imprisonment.




1
  Under USSG § 2G2.2(b)(7)(D), each video is considered to have 75 images, which in
Mr. Elosegui’s case amounted to 121,425 images.
2
  The PSI recommended a 2-level increase under § 2G2.2(b)(2) because the images depicted
prepubescent children or minors under 12 years old; a 2-level increase under § 2G2.2(b)(3)(F)
for use of a peer-to-peer file-sharing program; a 4-level increase under § 2G2.2(b)(4) because the
offense involved material portraying sadistic, masochistic, or other violent conduct; a 2-level
increase under § 2G2.2(b)(6) because a computer was used for the offense; and a 5-level increase
under § 2G2.2(b)(7)(D) because the offense involved 600 or more images.
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      Mr. Elosegui requested a downward variance from the advisory guideline

range. The district court denied this request and sentenced him to 151 months’

imprisonment for Count 1 and 120 months’ imprisonment for Count 2, with those

terms to be served concurrently, and five years’ supervised release.

                                               II

      We review the substantive reasonableness of a sentence for abuse of

discretion. See Gall v. United States, 

, 41 (2007). Mr. Elosegui, as the

party challenging the sentence, has the burden of demonstrating that it is

unreasonable in light of the record and the factors enumerated in 18 U.S.C.

§ 3553(a). See United States v. Tome, 

, 1378 (11th Cir. 2010). “A

district court abuses its discretion when it (1) fails to afford consideration to

relevant factors that were due significant weight, (2) gives significant weight to an

improper or irrelevant factor, or (3) commits a clear error of judgment in

considering the proper factors.” United States v. Irey, 

, 1189 (11th

Cir. 2010) (en banc). Under our deferential standard of review, “we are to vacate

the sentence if, but only if, we are left with the definite and 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.” 

(internal quotation marks and citation

omitted).


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      We examine whether a sentence is substantively reasonable in light of the

totality of the circumstances. See 

. The district court must

impose a sentence “sufficient, but not greater than necessary, to comply with the

purposes” listed in § 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, and protect the public from the defendant’s future criminal

conduct. The court must also consider the need to avoid unwarranted sentencing

disparities. See § 3553(a)(6). The fact that a sentence is within the advisory

guideline range and well below the statutory maximum are both factors indicative

of reasonableness. See United States v. Cubero, 

, 898 (11th Cir.

2014).

                                              III

      Mr. Elosegui argues that his sentence was substantively unreasonable,

particularly in light of his remorse, acceptance of responsibility, family support,

lack of criminal history, age, and childhood history of sexual abuse. He argues that,

taking into account these mitigating factors, a total sentence closer to the 60-month

mandatory minimum would have better reflected the seriousness of his crimes.

      The record shows that the district court considered the arguments and

mitigating evidence presented by Mr. Elosegui at sentencing, including his

alternative explanations for several of the items found at his residence and the


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results of a polygraph test in which he stated that he never had inappropriate sexual

contact with any minor. See D.E. 49 at 21–23. The district court determined that,

based on the evidence presented, Mr. Elosegui posed a danger to the community,

and sentenced him at the low end of the advisory guidelines range. See 

(“[T]he circumstantial evidence that exists before the [c]ourt is every single thing a

reasonable human being would look for circumstantially to give them concern over

whether or not someone is a danger to the community, absent any specific expert

evidence to the contrary exists in this case. And, bluntly, I’m concerned that he is a

danger.”).

      The district court’s rejection of Mr. Elosegui’s argument for a lesser total

sentence did not constitute an abuse of discretion because there is no indication

that the court failed to consider the relevant factors, gave weight to an improper or

irrelevant factor, or committed a clear error of judgment. Moreover, Mr. Elosegui’s

sentence falls at the low end of the advisory guidelines range, which indicates

reasonableness. See 

.

                                          IV

      Mr. Elosegui has not demonstrated that his 151-month sentence was

substantively unreasonable in light of the record and the § 3553(a) factors. The

sentence is therefore affirmed.

      AFFIRMED.


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