Opinion

United States v. Jesse Bertetto

Court
Court of Appeals for the Eleventh Circuit
Filed
Feb 12, 2026
Status
Unpublished
Nature of suit
NEW
Cited by
0 cases
Authority
More cited than 38.6%

The opinion

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NOT FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 24-10602

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JESSE JAMES BERTETTO,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:22-cr-00169-SDM-TGW-1

____________________

Before LAGOA, ABUDU, and ANDERSON, Circuit Judges.

PER CURIAM:

Jesse James Bertetto appeals the substantive reasonableness

of his 324-month sentence for distributing, possessing, and receiv-

ing child pornography. He argues that his sentence is unreasonable

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2 Opinion of the Court 24-10602

because the district court improperly balanced the 18 U.S.C. §

3553(a) factors and did not give sufficient weight to his mitigating

factors. The only issue before this Court is whether the sentence

is substantively unreasonable. Because we find that Bertetto’s sen-

tence is substantively reasonable, we affirm the sentence.

I. FACTUAL AND PROCEDURAL BACKGROUND

In December 2021, Homeland Security Investigations

Tampa (“HSI”) received a tip from the National Center for Missing

and Exploited Children (“NCMEC”) that an individual under the

username “jojomegadisxorse” was using the instant messaging ap-

plication Kik to send child pornography. The tip reported that the

user had uploaded seven videos depicting child pornography be-

tween July 21, 2021, and July 30, 2021, from multiple IP addresses.

HSI agents identified three individuals associated with the IP ad-

dresses, one of whom was Bertetto. HSI agents executed a search

warrant at the residence associated with the IP addresses in January

2022. Bertetto was not present during the search, but eight other

individuals were present, including five minors. Two of the minors

were Bertetto’s children. One of the individuals present, Stephanie

Barnes, told the agents that Bertetto was her husband and that she

had discovered child pornography on his phone approximately one

week prior to the search. Barnes also told the agents that the Volu-

sia County Sheriff’s Office (“VCSO”) had searched her previous res-

idence based on a tip linking child pornography to the residence in

December 2020. The VCSO seized her phone, Bertetto’s phone,

and other electronics at this time.

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24-10602 Opinion of the Court 3

K.B., a 17-year-old girl living in the household, later dis-

closed that Bertetto had sexually abused her. Agents subsequently

seized her phone. That day, HSI agents executed a search warrant

on Bertetto’s person at his place of work. Agents seized Bertetto’s

iPhone and searched his vehicle with his consent. Bertetto told

agents that he watched a lot of pornography because he had a por-

nography addiction, and he stated that he received a lot of “pop

ups” on his phone. The forensic examination of Bertetto’s iPhone

revealed that it contained approximately 156 images and approxi-

mately 25 videos depicting child pornography. The images showed

the sexual abuse of prepubescent minors, pubescent minors, and

infants and/or toddlers.

Bertetto’s web history also revealed that he had accessed

links on a photo sharing website that contained images of prepu-

bescent females. Eight of the links had been removed due to “ob-

jectionable content, such as Child Exploitation Material, Violent

Extremism, or Bestiality.” Agents also determined that Bertetto

had used the username “Kinkyoun” on Kik, and a search of his Kik

messages revealed chats in which he had requested child pornog-

raphy in exchange for sending child pornography.

The VCSO told HSI agents that their December 2020 search

warrant was based on a tip that Kik had made to NCMEC, report-

ing that Kik user “klorgen78” had uploaded 27 images of child por-

nography. The VCSO stated that it had seized Bertetto’s iPhone 7

and that it was in the process of forensically examining the phone.

HSI agents executed a search warrant on that phone in May 2022,

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4 Opinion of the Court 24-10602

uncovering approximately 8,737 images of child pornography and

approximately 4 videos of child pornography. Bertetto’s name is

associated with all the user accounts on both cellular phones

searched by HSI agents, including the Kik accounts. Bertetto is re-

sponsible for a total of 8,893 images and 29 videos of child pornog-

raphy. Pursuant to U.S.S.G. § 2G2.2, comment. (n.6), each video

is considered the equivalent of 75 images. Bertetto is thus account-

able for 11,068 images of child pornography.

In January 2023, a federal grand jury charged Bertetto by su-

perseding indictment on four counts: (1) distributing child pornog-

raphy, in violation of 18 U.S.C. § 2252(a)(2), (b)(1) (Count One); (2)

receiving child pornography, in violation of 18 U.S.C. § 2252(a)(2),

(b)(1) (Count 2); (3) possessing child pornography depicting a pre-

pubescent minor and a minor under the age of 12 years, in violation

of 18 U.S.C. § 2252(a)(4)(B), (b)(2) (Count Three); and (4) pos-

sessing and accessing with intent to view child pornography depict-

ing a prepubescent minor and a minor under the age of 12 years of

age, in violation of 18 U.S.C. § 2252(a)(4)(B), (b)(2) (Count Four).

A jury found Bertetto guilty on all counts.

Bertetto’s presentencing investigation report (“PSI”) states

that Bertetto had not clearly demonstrated acceptance of responsi-

bility as of completion of the presentence investigation. It notes

that he forced the government to take the case to trial and that he

had not admitted to his guilt. The four counts were grouped for

guideline calculation purposes pursuant to U.S.S.G. § 3D1.2(d).

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24-10602 Opinion of the Court 5

Pursuant to U.S.S.G. § 3D1.3(b), the offense level for the group cor-

responded to the count producing the highest offense level.

Counts One and Two resulted in the highest offense level. The

resulting base offense level was 22, pursuant to U.S.S.G. §

2G2.2(a)(2). The material involved a prepubescent minor or a mi-

nor under the age of 12, enhancing the offense level by 2 points

under U.S.S.G. § 2G2.2(b)(2). Pursuant to U.S.S.G. §

2G2.2(b)(3)(B), the offense level was enhanced by five points be-

cause Bertetto distributed child pornography in exchange for valu-

able consideration other than pecuniary gain. Because Bertetto’s

conduct involved material portraying sadistic or masochistic con-

duct or the sexual abuse of an infant or toddler, his offense level

was increased by four levels under U.S.S.G. § 2G2.2(b)(4)(A) and

(B). The offense level was enhanced by 5 levels under U.S.S.G. §

2G2.2(b)(5) because Bertetto had engaged in a pattern of sexual

abuse or exploitation of a minor, specifically of his 17-year-old sis-

ter, K.B. Because the offense involved the use of a computer or

interactive computer service for the possession, distribution, or re-

ceipt of the material with intent to view it, Bertetto’s offense level

was increased by two levels, pursuant to U.S.S.G. § 2G2.2(b)(6). (Id.

¶ 44). Finally, the offense level was increased by 5 points because

the offense involved 600 or more images, pursuant to U.S.S.G. §

2G2.2(b)(7)(D). The resulting adjusted offense level was 45. Pur-

suant to the sentencing table in Chapter 5, Part A of the Guidelines,

the offense level was treated as a level 43. Bertetto received a crim-

inal history score of zero, resulting in a criminal history category of

I.

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6 Opinion of the Court 24-10602

The PSI stated the following details about Bertetto’s family

history. Bertetto reported in a June 2022 mental health evaluation

that he experienced many years of psychological and emotional

abuse as a child, and that his mother placed him in foster care. His

father was charged with sexually abusing him in 1999 and Bertetto

was placed in foster care in 2000 for one year because of violence

and a lack of basic necessities in the home. Court records revealed

that Bertetto’s stepfather physically abused him, that both his

mother and stepfather were unemployed, and that neither his

mother nor his stepfather had benefited from professional help or

intervention services. Bertetto’s half-sister, K.B., informed author-

ities that Bertetto had sexually abused her between the ages of 12

and 16, the last incident of abuse occurring in May 2021. Bertetto’s

father filed a petition for domestic violence injunction against him

on K.B.’s behalf in January 2022. Bertetto was diagnosed with post-

traumatic stress disorder and “adjustment disorder with mixed anx-

iety and depressed mood” following this evaluation. The PSI

stated that Bertetto had been unemployed since April 2023 and

listed his most recent employment as a diesel mechanic for a truck-

ing company from January 2023 until April 2023.

Pursuant to 18 U.S.C. § 2252(a)(2), (b)(1), the statutory min-

imum prison term for Counts One and Two was 5 years and the

statutory maximum was 20 years. Under 18 U.S.C. § 2252(a)(4)(B),

(b)(2), the statutory maximum term of imprisonment for Counts

Three and Four was 20 years. The total offense level of 43 and

criminal history category of I resulted in a guideline imprisonment

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24-10602 Opinion of the Court 7

range of life, but the maximum sentence was limited by statute,

resulting in a guideline term of 960 months.

Attached to the PSI were numerous victim impact state-

ments, written by children who were depicted in images and vid-

eos accessed by Bertetto, as well as parents, psychologists, and at-

torneys representing the victims. The statements detailed the sig-

nificant mental and emotional harm caused to these children by the

abuse they suffered and the knowledge that videos and images of

their abuse was still circulating the internet. The probation office

recommended a sentence of 324 months’ imprisonment, with 240

months each for Counts One and Two, running concurrently, and

84 months each as to Counts Three and Four, running concur-

rently with one another but consecutive to Counts One and Two.

The recommended restitution amount was $108,000. The recom-

mended downward variance was based on the fact that a guideline

sentence of 960 months is essentially a life sentence, and Bertetto

should be given the opportunity to make amends by paying resti-

tution to the victims.

Further, the probation officer noted Bertetto’s history of fos-

ter care and childhood abuse as mitigating factors. In its sentencing

memorandum, the government requested that the court impose a

guideline sentence of 960 months’ imprisonment. It argued that

Bertetto’s conduct justified a guideline sentence due to the volume

of child sexual abuse material (“CSAM”) he possessed, the heinous

nature of the content, and the fact that Bertetto distributed CSAM.

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8 Opinion of the Court 24-10602

It asserted that Bertetto posed “an extraordinary danger” to chil-

dren because of his pattern of exploiting minors. In his sentencing

memorandum, Bertetto requested a below-guideline sentence.

Neither the government nor Bertetto submitted objections to the

PSI. At sentencing, the court confirmed that Bertetto had not ob-

jections to the factual contents of the PSI or its calculations.

During his sentencing hearing, Bertetto called Lawrence

Benes, a licensed mental health counselor who completed Ber-

tetto’s initial mental health evaluation. Benes stated that he found

Bertetto to have PTSD, adjustment issues, and showed some

symptoms of dissociative disorder. Benes stated that Bertetto be-

gan experiencing abuse at around age five or six, and that the abuse

continued into his teens. He also testified to his belief that therapy

could help prevent Bertetto from reoffending.

The government again asked that the court impose a guide-

line sentence of 960 months. It noted that, despite having his

phone seized in 2020, Bertetto was found to be engaging in the

same conduct in 2022. It also asserted that Bertetto was actively

engaged in conversations with the purpose of sending and receiv-

ing child pornography, some of which included children as young

as five years old. The government highlighted Benes’s testimony

that Bertetto exhibited a flat effect, as well as the fact that he still

had not accepted responsibility to argue that he posed a great threat

to public safety. It also noted the history of hands-on abuse of his

stepsister. Bertetto then requested that the court consider his lack

of criminal history and post-arrest conduct as mitigation.

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The court stated that sentencing in cases like Bertetto’s was

particularly difficult due to the range of conduct that can be in-

volved, from passive consumption of child pornography to active

production of content. It stated that there was a broad range of

sentences available. It also noted that it was rare for a qualified

mental health professional to testify to a causative relationship be-

tween a defendant’s abuse and his criminal conduct and asserted

that “[t]here are a lot of people who were abused as a child who

don’t engage in such activity.” The court then stated that, when

calculating sentences, judges consider “the policies and guidelines

of the sentencing commission and the advisory guideline range

that’s derived from those guidelines.” It also stated that judges

“consider the applicable statutory penalties,” as well as “the presen-

tations of counsel, both oral and in writing,” and the defendants’

PSIs.

Finally, the district court stated that judges consider the §

3553(a) factors, and it noted that Bertetto and the government ad-

dressed the factors in their sentencing memoranda. The court as-

serted that the nature of the offense was “more prominent in this

situation” because “it was a prolonged course of conduct.” It

stated, “that it’s bothersome that [Bertetto] continued to engage in

this conduct after [he] became aware that law enforcement was

aware of [his] activity.” But the court also noted that it considered

Bertetto’s background, and that it considered him “to be a diesel

mechanic with an iPhone and a computer and not a full-time man-

ufacturer, producer, or distributor of child pornography.” The

court stated that it wished to impose a sentence that encouraged

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10 Opinion of the Court 24-10602

respect for the law, and consequently that the “sentence should not

be viewed by a reasonable and informed and disinterested person

as either excessively and unduly harsh, for no constructive reason,

nor unduly lenient.” Protecting the community the court’s “the

primary consideration,” and that it was statutorily required to con-

sider deterrence. Finally, the court stated that it considered avoid-

ing unwarranted sentencing disparities.

The court found that a 960-month sentence was greater than

necessary to accomplish the statutory purposes of sentencing and

that such a sentence “should be reserved for some of the . . . more

severe offenders,” like those “that procure or provide children for

the manufacture, distribution, sale . . . of these hideous movies.”

Bertetto was sentenced to 324 months’ imprisonment. Specifically,

Bertetto was sentenced to 240 months as to Counts One and Two,

running concurrently, and 84 months as to Counts Three and Four,

running concurrently with each other but consecutively to Counts

One and Two.

II. STANDARD OF REVIEW

We generally apply “the familiar abuse-of-discretion stand-

ard” when reviewing the substantive reasonableness of a sentence.

Gall v. United States, 552 U.S. 38, 46 (2007). The district court abuses

its discretion if it applies an incorrect legal standard, follows im-

proper procedures in determining the sentence, or makes clearly

erroneous factual findings. United States v. Barrington, 648 F.3d

1178, 1194 (11th Cir. 2011). The abuse-of-discretion standard is a

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24-10602 Opinion of the Court 11

deferential one, and “it is only the rare sentence that will be sub-

stantively unreasonable.” United States v. McQueen, 727 F.3d 1144,

1156 (11th Cir. 2013). “The party challenging the sentence bears

the burden to show it is unreasonable in light of the record and the

§ 3553(a) factors.” United States v. Tome, 611 F.3d 1371, 1378 (11th

Cir. 2010).

III. ANALYSIS

Sentences must be procedurally and substantively reasona-

ble. See Gall, 552 U.S. at 51. Because Bertetto does not challenge

the procedure reasonableness of his sentence, the only issue before

us is whether the sentence is substantively reasonable. A district

court must impose a “sentence sufficient, but not greater than nec-

essary, to comply with the purposes set forth” in § 3553(a)(2),

which are: the need for the sentence to reflect the seriousness of

the offense, promote respect for law, provide just punishment, af-

ford adequate deterrence, protect the public, and provide the de-

fendant with needed correctional treatment. 18 U.S.C. §

3553(a)(2). The district court must also consider: (1) the nature and

circumstances of the offense and the history and characteristics of

the defendant; (2) the types of sentences that are available; (3) the

appropriate types of sentences and sentencing range established by

the sentencing guidelines; (4) policy statements by the Sentencing

Commission; (5) the need to avoid sentencing disparities between

similarly situated defendants; and (6) the need to provide restitu-

tion. Id. § 3553(a)(1), (3)-(7). We consider “the totality of the cir-

cumstances” when determining the substantive reasonableness of

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12 Opinion of the Court 24-10602

a sentence. United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir.

2008) (quoting Gall, 552 U.S. at 51).

Further, a “district court does not need to discuss or state

each factor explicitly.” United States v. Gonzalez, 550 F.3d 1319, 1324

(11th Cir. 2008). We do not take a court’s failure to discuss certain

mitigating evidence to mean “that the court erroneously ignored

or failed to consider this evidence in determining” a sentence.

United States v. Amedeo, 487 F.3d 823, 833 (11th Cir. 2007) (quotation

marks omitted).

We acknowledge that there are a range of reasonable sen-

tences for a given offense. United States v. Irey, 612 F.3d 1160, 1190

(11th Cir. 2010) (en banc). We will vacate a “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.’” Id. (quot-

ing Pugh, 515 F.3d at 1191). We may find that a district court has

abused its discretion when it “unjustifiably relies on any single

§ 3553(a) factor, fails to consider pertinent § 3553(a) factors, bases

the sentence on impermissible factors, or selects the sentence arbi-

trarily.” Grushko, 50 F.4th at 19. But “[a] sentence that suffers from

one of these symptoms is not per se unreasonable.” Id. Instead, it

is subject to review based on “the totality of the circumstances to

determine the sentence’s reasonableness.” Id.

Bertetto argues that his sentence is substantively unreason-

able because it is greater than necessary to protect the public and

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24-10602 Opinion of the Court 13

further the goals of sentencing. First, he argues that his sentence

was substantively unreasonable because the district court record

lacks substantive discussion of his history of childhood physical and

sexual abuse, and how the court weighed his traumatic background

in calculating his sentence. Second, Bertetto argues that the district

court improperly focused on the seriousness of the offense and did

not give adequate weight to his lack of criminal record and low re-

cidivism risk. He asserts that his sentence appeared to be based

almost entirely on the seriousness of the offense and that § 3553(a)

does not permit courts to base a sentence on any one single factor.

Lastly, he argues that his sentence is greater than necessary to

achieve the purposes set forth in the sentencing guidelines, noting

that his 27-year sentence is on the high end of sentencing outcomes

among similarly situated defendants.

As a general matter, we “appreciate the institutional ad-

vantage that district courts have in applying and weighing the Sec-

tion 3553(a) factors in individual cases.” Pugh, 515 F.3d at 1190-91.

“In the face of this discretion, it is only the rare sentence that will

be substantively unreasonable. McQueen, 727 F.3d at 1156.

Turning to Bertetto’s first and second argument, the fact

that the court did not weigh Bertetto’s mitigating factors as heavily

as he would have does not mean that the court improperly

weighed the sentencing factors. While the court did not explicitly

discuss all of Bertetto’s mitigating factors, such as his lack of crimi-

nal history, it is not required to do so. See United States v. Al Jaberi,

97 F.4th 1310, 1330 (11th Cir. 2024). It is also within the district

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14 Opinion of the Court 24-10602

court’s discretion to weigh some factors more heavily than others.

See United States v. Grushko, 50 F.4th 1, 19 (11th Cir. 2022). And the

district court did explicitly discuss some of Bertetto’s mitigating fac-

tors, such as his personal background and the fact that he was not

a full-time producer or distributer of child pornography. And the

court did not focus exclusively on one factor, as Bertetto claims. It

simply weighed more heavily the nature of Bertetto’s offenses and

the need to protect the community. It was “within its sound dis-

cretion” to do so. Grushko, 50 F.4th at 19.

We are similarly not persuaded by Bertetto’s final argument.

Ordinarily, we expect that a sentence within the guidelines range

is a reasonable one. United States v. Dorsey, 554 F.3d 958, 962 (11th

Cir. 2009). Further, “[a] sentence well below the statutory maxi-

mum indicates reasonableness.” United States v. Thomas, 108 F.4th

1351, 1357 (11th Cir. 2024), cert. denied, 145 S. Ct. 1102 (2025). Ber-

tetto’s 324-month sentence is well below the guideline range of 960

months.

IV. CONCLUSION

Because the record evidence shows that the district court

considered and weighed the 18 U.S.C. § 3553(a) factors and his sen-

tence was well below the guideline range, we find the district

court’s sentence substantively reasonable and affirm the sentence.

AFFIRMED.

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