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NOT FOR PUBLICATION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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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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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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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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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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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.