The opinion
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NOT FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-12136
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PLAMEN GEORGIEV VELINOV,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:21-cr-00342-VMC-SPF-1
____________________
Before BRANCH, LUCK, and LAGOA, Circuit Judges.
LUCK, Circuit Judge:
After a jury trial, Plamen Velinov was convicted of conspir-
ing to advertise and distribute visual depictions of minors engaging
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2 Opinion of the Court 23-12136
in sexually explicit conduct and sentenced to 300 months’ impris-
onment. He appeals his convictions and sentence, raising five is-
sues on appeal. As to his trial, Velinov argues that the district court:
(1) violated his Sixth Amendment right to a complete defense by
preventing him from questioning witnesses about whether the pic-
tures and videos he advertised and distributed depicted legal “child
erotica”; (2) erred by denying his motion for judgment of acquittal
because the pictures and videos he advertised and distributed did
not depict the “lascivious exhibition of the anus, genitals, or pubic
area” of a minor; and (3) violated his Fifth Amendment right to due
process by giving the jury an unconstitutionally vague definition of
“lascivious exhibition.” As to his sentence, Velinov contends that
the district court (4) violated his Fifth Amendment right to due pro-
cess by considering statistical evidence from a United States Sen-
tencing Commission report without giving him a meaningful op-
portunity to refute it, and (5) imposed a substantively unreasonable
sentence. After careful review, and with the benefit of oral argu-
ment, we affirm.
FACTUAL BACKGROUND
Velinov played a key role in managing Newstar, a vertically-
integrated business that produced, marketed, and distributed
highly sexualized pictures and videos of children. Newstar sent
photographers and videographers to Eastern European countries
like Ukraine and Moldova to recruit children—mainly young girls
eight to twelve years old—as “models.” These girls often came
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23-12136 Opinion of the Court 3
from single-parent homes with limited resources and Newstar usu-
ally paid parents less than $100 per day to use their girls for pho-
toshoots. The girls were dressed in skimpy bathing suits, see-
through lingerie, and tight underwear that visually exposed their
genitals and pubic areas, and were posed in sexualized positions,
some with their legs splayed open, others touching their under-
wear near the pubic area, and still others prone in the “doggy-style”
position, with their legs open, back arched, rear end up, shoulders
down, and genitals displayed to the camera.
Newstar sold these pictures through the “Newstar Model
Collection,” a network of websites it controlled and operated. The
Newstar Model Collection involved about one hundred different
websites, each dedicated to a different girl. Each website had a
landing page with a large picture of the girl, usually displayed in a
provocative pose. Users that wanted more had to pay. If they nav-
igated past the landing page, they were prompted to subscribe for
access to the full gallery—$49.99 for thirty days, $69.99 for sixty
days, and $95.99 for ninety days—payable by credit card or crypto-
currency.
The Newstar Model Collection websites were connected to
each other through advertising banners enticing the user to sub-
scribe to other websites in the Newstar universe. One banner read:
“[h]ow can we describe the dream that is [D.]? A dream that will
haunt you with its beauty until you visit her again, so she can keep
you under her spell. Join her today. Check out the free previews.”
And another beckoned: “[c]ome taste the [L.’s] photo pieces! Each
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4 Opinion of the Court 23-12136
piece has a whole [] gallery of sweet photos for our members! En-
joy, sugar free.”
Each website also contained a “Buy My Videos Here!!!” link,
which redirected the user to Clipmonster.net, another Newstar
website where users could purchase individual videos of the girls
from the Newstar Model Collection websites. The Clipmonster
videos were similar to the Newstar Model Collection pictures. One
video had a “pre-pubescent female child and a post-pubescent fe-
male” wearing “full white lingerie,” intertwined together, with
their legs open to the camera and their rear ends exposed. Another
had “a little boy and little girl in close proximity in various sexual
poses,” and yet another had “a pre-pubescent female child wearing
a mesh outfit” with “her nipples . . . visible through the mesh” and
“leggings” that “appear[ed] to be crotchless.”
Revenues from the sale of these pictures and videos passed
through Newstar’s in-house payment platform, Cyber-pay.net,
which processed credit card and cryptocurrency purchases for the
subscriptions and content purchased through the Newstar Model
Collection and Clipmonster. The business was both prolific and
lucrative. From 2004 to 2019, Newstar produced more than 4.6
million pictures and videos, generating more than $9.4 million in
revenue from tens of thousands of customers in 101 countries
worldwide. To launder the proceeds, Newstar opened bank ac-
counts in the United States by misrepresenting the nature of
Newstar’s business and the accounts’ intended use.
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Velinov, based in Bulgaria, was involved in nearly every as-
pect of the business. From 2006 to 2019, Velinov worked closely
with Newstar’s founder, Kenneth Power, with whom he spoke “al-
most every day.” Together with Power, Velinov played a key role
in curating the websites’ content. As Power told Velinov, the goal
was to “maximize profit” by appealing to “all people[s’] fet-
ish[es] . . . to catch everyone.” And that’s what Velinov did, direct-
ing Newstar’s photographers and videographers on how to make
“nuclear sexy” content. Pictures and videos with “all the clothes”
were “not what the customer want[ed].” But a different video was
“fine” because the girl at least “show[ed] some panties.” As Velinov
told Power, the videographers should “make the videos when [the
girls] are in bathing suits at least.”
Velinov and Power often discussed the relative attractive-
ness of the girls and how pretty they would be if they continued to
use them as they got older. Velinov remarked that one girl was
“nuclear sexy.” But Power also talked to him about how girls from
a particular town “must [be] inbr[ed]” because “[e]verybody looks
the same.” Power told Velinov that although “there are also a lot
of pretty ones,” he could tell which ones “will get fat,” and Velinov
agreed that “it is easy seeing as they are fat even now.” At one
point, Velinov lamented that he wished “we could get at least [C.]
back,” referring to a girl whose pictures and videos were particu-
larly popular with Newstar’s customers, but Power informed Veli-
nov that this was not possible since “she is a prostitute now plus
gets drunk every night.”
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6 Opinion of the Court 23-12136
When selecting content for the websites, Velinov picked the
most sexually provocative pictures as previews to draw in more cus-
tomers because, as he acknowledged, “only risky advertisement
can get us more sales.” He and Power selected which photos and
videos would make the cut for the websites, “go[ing] through sales”
data to ensure the websites presented girls in ways that would ap-
peal to the most customers. Velinov monitored the sales trends of
the girls, observing when a girl’s popularity peaked and declined
and comparing the girl’s popularity to that of other girls. He noted
that one girl’s webpage “made [$5,000] without updates for a year,”
but he also knew that there was no point to “paying $4,000 a month
for updates on sites that make no profit.” Another time, he released
“one video left unpublished of a previous[ly] very popular [girl],”
and since that video was “long enough,” he “split[] it in two
parts . . . for a price of $29.95 for each part,” to maximize revenue.
Velinov was also responsible for “mak[ing] sure that the web-
sites were running smoothly and right.” He worked on program-
ming the websites and communicated directly with customers to
resolve technical issues and to answer questions about new re-
leases. In doing so, he knew the need for discretion. He created
multiple servers to host the websites “hidden behind proxies so no-
body kn[e]w[] about [them],” and made sure payments to photog-
raphers and videographers were “hard to trace.” As he confided to
Power, Velinov knew the business was dangerous and had “fears”
about the risk to his “wife and family and freedom” because of his
work.
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23-12136 Opinion of the Court 7
PROCEDURAL HISTORY
Velinov’s fears were well justified. In 2019, Newstar was shut
down in an international law enforcement exercise spanning the
United States, the Netherlands, Bulgaria, and other countries. Ve-
linov was indicted for conspiring to advertise visual depictions of
minors engaged in sexually explicit conduct, in violation of
18 U.S.C. section 2251(d), (e), and conspiring to distribute visual de-
pictions of minors engaged in sexually explicit conduct, in violation
of 18 U.S.C. section 2252(a)(2), (b)(1). Velinov pleaded not guilty
and proceeded to a jury trial.
A. Trial
We’ll focus on the parts of the trial relevant to Velinov’s ap-
peal: (1) the cross-examination of the law enforcement witnesses;
(2) the denial of his motion for judgment of acquittal; and (3) the
jury instructions.
1. Cross-Examination
The government presented testimony from four federal
agents: Alison Boos, Gibran Ali, Joshua Storey, and Tavey Garcia.
Velinov sought to cross-examine each of them about the lawfulness
of “child erotica” and the difference between “sexually suggestive”
and “sexually explicit conduct.”
First, Velinov cross-examined Agent Boos about internal sta-
tus reports that she sent to her bosses at the Department of Justice.
The reports started with the same preamble: Velinov and his co-
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8 Opinion of the Court 23-12136
conspirators were “running and facilitating commercial child erot-
ica websites” and the websites depicted “clothed minors, some
clearly pre-pubescent, and many [we]re posed in a sexually sugges-
tive manner.”
Velinov had Agent Boos read the preamble, and then asked,
“[i]t doesn’t say sexually explicit manner, sexually explicit conduct?”
The government objected that the question called for a legal con-
clusion, and the district court asked Velinov to rephrase the ques-
tion. Velinov then asked, “commercial child erotica websites, those
are lawful, right?” The government made the same objection,
which the district court sustained.
Next, Velinov cross-examined Agent Ali. As he did with
Agent Boos, Velinov asked Agent Ali, “something that’s sexually
suggestive is, you would agree, different from something that is
sexually explicit?” The government objected, and the district court
sustained the objection because the question called for a legal con-
clusion.
Then, Velinov cross-examined Agent Storey. Velinov asked,
“is it fair to say that there is a lot of material in . . . the public air-
waves that would be classified as child erotica?” The district court
sustained the government’s objection because the question called
for a legal conclusion.
Finally, Velinov cross-examined Agent Garcia, the lead inves-
tigator in the case. Velinov asked again, “[w]ould you agree that
sexually suggestive is something different from sexually explicit;
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would you agree with that?” The district court again sustained the
government’s objection.
2. Motion for Judgment of Acquittal
At the close of the government’s case, Velinov moved for a
judgment of acquittal, arguing that the government did not estab-
lish that the pictures and videos he helped advertise and distribute
depicted “sexually explicit conduct” because the minors were not
nude. Thus, he argued, the pictures and videos were “commercial
child erotica, which under the case law is on the legal side of the
line.”
The government responded that the statutory definition of
“sexually explicit conduct” includes “lascivious exhibition of the
genitals and pubic area,” which does not require that the depiction
be of a nude minor. The district court denied the motion because
the evidence was “sufficient there to move forward to the next
stage.” Velinov rested his case without presenting any evidence.
3. Jury Instructions
The district court instructed the jury that the statutory defi-
nition of the term “sexually explicit conduct” meant “actual or sim-
ulated: (a) sexual intercourse, including genital-genital, oral-geni-
tal, anal-genital, or oral-anal, whether between persons of the same
or opposite sex; (b) bestiality; (c) masturbation; (d) sadistic or mas-
ochistic abuse; or (e) lascivious exhibition of the anus, genitals, or
pubic area of any person.” “Lascivious exhibition,” in turn, was
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10 Opinion of the Court 23-12136
defined as “indecent exposure of the anus, genitals, or pubic area,
usually to incite lust.”
“Visual depictions,” the instructions explained, “do not need
to be nude depictions to qualify as ‘lascivious exhibition of the
anus, genitals, or pubic area of any person.’” And “[n]ot every ex-
posure is a lascivious exhibition.” “Sexually explicit conduct,” the
district court continued, “requires more than . . . [m]erely sexually
suggestive images of children,” which “are sometimes referred to
as ‘child erotica.’”
The instructions acknowledged that the line between “for-
bidden ‘lascivious exhibition of the anus, genitals, or pubic area’
and . . . an innocuous photograph of a naked child (e.g., a family
photograph of a child taking a bath, or an artistic masterpiece por-
traying a naked child model) is not concrete.” So, borrowing from
our pattern jury instructions, the district court gave the jury factors
to consider in “decid[ing] whether a visual depiction is a lascivious
exhibition.” The jury was told to “consider the context and setting
in which the anus, genital[s], or pubic area is being displayed,” and
[1] the overall content of the material; [2] whether
the focal point of the visual depiction is on the mi-
nor’s anus, genitalia, or pubic area; [3] whether the
setting of the depiction appears to be sexually inviting
or suggestive—for example, in a location or in a pose
associated with sexual activity; [4] whether the minor
appears to be displayed in an unnatural pose or in in-
appropriate attire; [5] whether the minor is partially
clothed or nude; [6] whether the depiction appears to
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23-12136 Opinion of the Court 11
convey sexual coyness or an apparent willingness to
engage in sexual activity; and [7] whether the depic-
tion appears to have been designed to elicit a sexual
response in the viewer.
Velinov objected that the inclusion of these considerations
“render[ed] the statute unconstitutionally vague.” The district
court overruled the objection, noting that the language was taken
from our pattern instructions.
B. Sentencing
The jury found Velinov guilty of both counts. After the ver-
dict, the United States Probation Office prepared a presentencing
investigation report, which calculated a guideline range of
600 months’ imprisonment.
Velinov argued for a downward variance to 180 months (the
statutory minimum) for two reasons. First, his case was “outside
the heartland” of child pornography cases because the pictures and
videos had no nudity or sexual activity and he did not abuse any
child, so his conduct was less harmful compared to other defend-
ants. In support, Velinov cited a United States Sentencing Commis-
sion report showing that defendants sentenced under the same
guideline received an average of 103 months’ imprisonment except
for defendants with “sexually dangerous behavior histories,” who
received an average of 134 months’ imprisonment. Second, Veli-
nov argued that he should get a downward variance because some
of his coconspirators received shorter sentences.
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In considering Velinov’s request for a variance, the district
court explained that, “[a]ccording to [the Commission]’s judiciary
sentencing information report,” a defendant sentenced under the
same guideline with the same offense level and criminal history as
Velinov had an average term of 323 months’ imprisonment. Veli-
nov objected to the court’s consideration of the Commission’s re-
port, arguing that he did not have a “chance to research these sta-
tistics” and that “based on [his] research, [he] could promise” that
the “awful horrible abuse of children . . . [was] included in this sta-
tistic, assuming it’s accurate.” The district court confirmed with
the probation officer that the report did not include cases where
the defendant abused children. Still, the court explained, it would
“make [its] own decision” regardless of what the report said. As to
Velinov’s coconspirators, the district court noted that they had
pleaded guilty and cooperated with the government, so “you’re not
really comparing apples with apples.”
Nevertheless, the district court granted Velinov’s request to
vary downward, and sentenced him to 300 months’ imprisonment.
The variance was called for, the district court said, because the
guidelines were a “starting point.” This was Velinov’s first arrest
and conviction, and the case did “not fall into the heartland of the
other cases [involving] the use of children in a sexual nature and
with respect to other deviant behavior.” But, the court concluded,
it would not vary downward as much as Velinov wanted because
of the harm he had caused to the child victims, “the money that
had been made,” and his substantial involvement in the Newstar
enterprise.
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Velinov appeals his convictions and sentence.
DISCUSSION
We’ll begin with the three errors Velinov contends the dis-
trict court made at his trial. Then, we’ll address his two sentencing
issues.
A. Trial Issues
First, Velinov argues that the district court deprived him of
the right to present a complete defense by limiting his cross-exam-
ination of the law enforcement witnesses about the line between
legal child erotica and illegal sexually explicit conduct. Second, Ve-
linov asserts that the district court erred in denying his motion for
judgment of acquittal because the pictures and videos he advertised
and distributed did not involve lascivious exhibitions of a minor’s
anus, genitals, or pubic area. And third, Velinov maintains that the
district court’s instruction to the jury defining lascivious exhibition
was unconstitutionally vague. We’ll take these arguments in turn.
1. Cross-Examination
Starting with the cross-examination issue, the Fifth and Sixth
Amendments to the Constitution “guarantee[] criminal defendants
a meaningful opportunity to present a complete defense.” Crane v.
Kentucky, 476 U.S. 683, 690 (1986) (citation modified). We apply a
two-step framework to evaluate whether a court violated this guar-
antee: (1) first, we examine whether the “right was actually vio-
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14 Opinion of the Court 23-12136
lated,” and (2) if so, we next look at “whether the error was ‘harm-
less beyond a reasonable doubt.’” United States v. Hurn, 368 F.3d
1359, 1362–63 (11th Cir. 2004) (quoting Chapman v. California, 386
U.S. 18, 24 (1967)). 1
At the first step, a district court does not violate the defend-
ant’s right to a complete defense if it “permits [the] defendant to
present the essence of his desired argument to the jury . . . .” United
States v. Harris, 916 F.3d 948, 959 (11th Cir. 2019) (citing United
States v. Buckley, 586 F.2d 498, 503 (5th Cir. 1978)). The “exclusion
of some portions of [a witness’s] testimony” does not violate the
defendant’s complete-defense right when the district court “did not
prevent [the defendant] from introducing the key elements of his
defense and placing his story before the jury.” United States v. Fra-
zier, 387 F.3d 1244, 1273 (11th Cir. 2004) (en banc); see also United
States v. Akwuba, 7 F.4th 1299, 1312 (11th Cir. 2021) (finding that
erroneous jury instruction did not violate the defendant’s right to
a complete defense when the defendant “was still able to put forth
her . . . defense in her closing statement and through multiple wit-
nesses” and therefore “was not prevented from presenting her the-
ory of defense to the jury”).
That’s what happened here. Velinov was not prevented
from presenting “[his] desired argument to the jury” that legal child
erotica was distinct from illegal sexually explicit conduct through
1 We review de novo whether the exclusion of evidence violated a defendant’s
constitutional right to present a complete defense. See United States v. Starr,
159 F.4th 901, 907 (11th Cir. 2025).
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witness testimony, the jury instructions, and his closing argument.
See Harris, 916 F.3d at 959. Specifically, Velinov had Agent Boos
read her internal status reports where she characterized the
Newstar websites as “child erotica websites” that sold pictures of
“clothed minors, some clearly pre-pubescent,” “posed in a sexually
suggestive manner.” And Velinov had the district court instruct
the jury that “[s]exually explicit conduct requires more than pic-
tures of children that are sexually suggestive” and that “[m]erely
sexually suggestive images of children are sometimes referred to as
‘child erotica.’”
Using this instruction and Agent Boos’s reports, Velinov ar-
gued in closing that child erotica was “legal pictures of children.
Creepy, but legal.” In Velinov’s telling, applying “the judge’s in-
structions” to Agent Boos’s references “to Newstar as commercial
child erotica websites” proved that Newstar’s pictures and videos
were “legal material.” Velinov urged the jury to “[l]ook at the
judge’s instructions for what it takes to show sexually explicit con-
duct” and “let your own eyes evaluate the evidence.”
Velinov, in other words, had the key elements of his defense
to place his story before the jury. See Frazier, 387 F.3d at 1273. He
had evidence that the pictures and videos were only sexually sug-
gestive, and he had a jury instruction that more was required for a
conviction. Because he was permitted “to present the essence of
his desired argument to the jury,” his right to present a complete
defense was not violated. Harris, 916 F.3d at 959.
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2. Motion for Judgment of Acquittal
Next, Velinov argues that the district court erred in denying
his motion for judgment of acquittal.2 The elements of Velinov’s
two convictions—conspiring to advertise and conspiring to distrib-
ute visual depictions of minors engaged in sexually explicit con-
duct—are largely the same. Federal law prohibits conspiring to ad-
vertise and distribute in interstate or foreign commerce any “visual
depiction” that “involves the use of a minor engaging in sexually
explicit conduct.” See 18 U.S.C. §§ 2251(d)–(e), 2252 (a)(2), (b)(1).
Velinov doesn’t dispute that he was part of a conspiracy.
And he does not dispute that he and the other coconspirators he
worked with advertised and distributed visual depictions of mi-
nors. The only element Velinov disputes, here and below, is that
the depictions of minors he advertised and distributed involved mi-
nors engaged in “sexually explicit conduct.”
“[S]exually explicit conduct” is “actual or simulated . . .
(i) sexual intercourse . . . ; (ii) bestiality; (iii) masturbation; (iv) sa-
distic or masochistic abuse; or (v) lascivious exhibition of the anus,
genitals, or pubic area of any person.” Id. § 2256(2)(A). Here, the
2 We review de novo a sufficiency-of-the-evidence challenge raised in a motion
for judgment of acquittal, viewing the evidence in the light most favorable to
the verdict. United States v. Jimenez, 972 F.3d 1183, 1190 (11th Cir. 2020). “A
jury’s verdict cannot be overturned if any reasonable construction of the evi-
dence would have allowed the jury to find the defendant guilty beyond a rea-
sonable doubt.” United States v. Watts, 896 F.3d 1245, 1251 (11th Cir. 2018)
(citation modified).
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government charged, and the jury was instructed on, the last kind
of sexually explicit conduct—that the Newstar pictures and videos
involved the “lascivious exhibition[s]” of a minor’s “anus, genitals,
or pubic area.” See id. § 2256(2)(A)(v).
Velinov contends that the “lascivious exhibition” of a mi-
nor’s “anus, genitals, or pubic area” requires either a nude depic-
tion or a sex act. The evidence was insufficient to convict him, he
argues, because the Newstar pictures and videos depicted neither.
That’s wrong because the pictures and videos Velinov ad-
vertised and distributed did depict nude minors through transpar-
ent lingerie and tight underwear that visually exposed girls’ genitals
and pubic areas. One picture he advertised and distributed, for ex-
ample, showed a girl in sheer baby blue panties with pink hearts,
lying on her back with her legs spread open and her labia visible
through the see-through fabric. Another picture depicted a girl ly-
ing on her back with her legs spread apart and knees bent with the
outline of her genitals protruding through sheer purple panties. A
third picture was of a girl in white panties pulled up so tightly over
her pubic area that the outline of her labia was visible though the
underwear. And a fourth picture showed a girl posing in blue bikini
bottoms so small and narrow that the sides of her pubic area were
left completely bare and visible up to the labia. There were others
the jury saw.
Velinov is also wrong that a lascivious exhibition of the anus,
genitals, or pubic area requires a sex act. It does not. As we ex-
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18 Opinion of the Court 23-12136
plained in United States v. Holmes, 814 F.3d 1246 (11th Cir. 2016), “de-
pictions of otherwise innocent conduct may in fact constitute a ‘las-
civious exhibition of the genitals or pubic area’ of a minor based
on the actions of the individual creating the depiction.” Id. at 1251–
52; see also United States v. Johnson, 639 F.3d 433, 440 (8th Cir. 2011)
(“[E]ven images of children acting innocently can be considered
lascivious if they are intended to be sexual.”).
That’s because a depiction is a “lascivious exhibition” of a
minor’s anus, genitals, or pubic area when it “potentially excites
sexual desires or is salacious.” United States v. Grzybowicz, 747 F.3d
1296, 1306 (11th Cir. 2014) (citation modified). This focuses on the
“actions of the individual creating the depiction,” and not on the
actions of the victim. Holmes, 814 F.3d at 1252. We focus on the
defendant’s actions and not the child’s because “[l]asciviousness is
not a characteristic of the child photographed but of the exhibition
which the photographer sets up for an audience that consists of
himself or like-minded pedophiles.” Id. at 1252 (quoting United
States v. Wiegand, 812 F.2d 1239, 1244 (9th Cir. 1987)).
To do this, we examine the “actual depictions themselves”
to see whether they “featured the child . . . as a sexual object . . .
presented by the photographer as to arouse or satisfy the sexual
cravings of a voyeur.” Id. at 1251–52 (quoting Wiegand, 812 F.2d at
1244). For example, in Holmes, the defendant installed a hidden
camera to record his stepdaughter changing. Id. at 1251–53. The
defendant argued that the videos were not lascivious exhibitions of
the anus, genitals, or pubic area because the “original depiction
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23-12136 Opinion of the Court 19
[was] one of an innocent child acting innocently.” Id. at 1252. But
we rejected that argument, finding that the “placement of the cam-
eras,” the “focus on videoing and capturing pictures of [the vic-
tim’s] pubic area,” the “angle of the camera set up,” and the de-
fendant’s “editing of the videos at issue” to capture his minor step-
daughter’s pubic area were sufficient “to create a lascivious exhibi-
tion of the genitals or pubic area.” Id. at 1252. Similarly, in
Grzybowicz, we looked at what the photographer did to stage the
picture, the “focal point” of the pictures on the minor’s genitals,
and the fact that there was no “non-sexual purpose” to the pictures
to determine that they were “blatantly lascivious.” See 747 F.3d at
1306.
Applying these same considerations here, there was suffi-
cient evidence that many of the Newstar pictures and videos were
“lascivious exhibition[s] of the anus, genitals, or pubic area” of mi-
nors. See 18 U.S.C. § 2256(2)(A)(v). The pictures and videos exhib-
ited girls’ genitals or pubic areas in “pose[s] associated with sexual
activity”: laying on their back with their legs “splayed open”; on
their knees with their shoulders down, back arched, and rear end
up, with genitals towards the camera (colloquially known as
“doggy-style”); and lying on their back with legs “up in the air and
stretched” while “touching [their] underwear near their genital
area.” As in Holmes, the Newstar pictures and videos were focused
on the genitals and pubic area, the camera was angled to highlight
either the pubic area (the camera set facing forward) or genitals (the
camera set from below, pointing up), and the videos were edited to
feature the most salacious parts. See 814 F.3d at 1252.
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20 Opinion of the Court 23-12136
Because these depictions “featured the” genitals or pubic
area “as a sexual object . . . presented by the photographer as to
arouse or satisfy the sexual cravings of a voyeur,” id. at 1252 (quot-
ing Wiegand, 812 F.2d at 1244), the evidence was sufficient for a jury
to find that they contained “lascivious exhibition[s]” of the “anus,
genitals, or pubic area” of minors. Thus, they were “visual depic-
tion[s]” of “minor[s] engaging in sexually explicit conduct.”
18 U.S.C. §§ 2252(a)(2), (b)(1), 2256(2)(A).
3. Jury Instructions
As the last trial issue, Velinov challenges the district court’s
instruction to the jury defining lascivious exhibition. He concedes
that there’s nothing wrong with the statutory definition, which the
district court gave to the jury. Instead, Velinov argues that giving
the jury additional considerations 3 as a way to sort out a lascivious
3 The district court instructed the jury that, “[t]o decide whether a visual de-
piction is a lascivious exhibition,” it “may consider,” (1) “the overall content
of the material”; (2) “whether the focal point of the visual depiction is on the
minor’s anus, genitalia, or pubic area”; (3) “whether the setting of the depic-
tion appears to be sexually inviting or suggestive—for example, in a location
or in a pose associated with sexual activity”; (4) “whether the minor appears
to be displayed in an unnatural pose or in inappropriate attire”; (5) “whether
the minor is partially clothed or nude”; (6) “whether the depiction appears to
convey sexual coyness or an apparent willingness to engage in sexual activity”;
and (7) “whether the depiction appears to have been designed to elicit a sexual
response in the viewer.”
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23-12136 Opinion of the Court 21
exhibition of the anus, genitals, or pubic area from a depiction that
is not lascivious rendered the definition unconstitutionally vague.4
We don’t see it because the additional considerations the dis-
trict court gave the jury are essentially the same as the usual factors
we look at to determine whether a depiction is a “lascivious exhi-
bition.” In Holmes, for example, we used many of the same factors
to determine whether depictions of the defendant’s stepdaughter
changing in the bathroom were lascivious exhibitions: the setting;
the focus; the angle; the editing; how the minor was dressed;
whether the depiction was one that “potentially excite[d] sexual de-
sires or [was] salacious”; and whether the photo appeared to be de-
signed “to arouse or satisfy the sexual cravings of a voyeur.” 814
F.3d at 1251–53. Similarly, in Grzybowicz—where the defendant
“reached under a little girl’s dress, pulled aside her diaper, and took
four pictures of her vagina”—we reviewed the depictions to see if
they were lascivious by looking at whether the minor was nude or
clothed, the focal point, whether the minor was in an unnatural
pose, and whether there was any “non-sexual purpose” to the de-
pictions. See 747 F.3d at 1306. In other words, the district court
instructed the jury to review roughly the same considerations we
already use in applying the legal definition of lascivious exhibition
to depictions of a child’s anus, genitals, or pubic area.
4 “We review de novo the legal correctness of jury instructions . . . .” United
States v. Alexander, 170 F.4th 1303, 1314 (11th Cir. 2026) (citing United States v.
Prather, 205 F.3d 1265, 1270 (11th Cir. 2000)).
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22 Opinion of the Court 23-12136
Pushing back, Velinov insists that the additional considera-
tions in the district court’s instructions made the statutory defini-
tion of “lascivious exhibition” vague because “there is little (lawful)
child erotica which could not ‘pass’ one or more of the six fac-
tor[s].” For instance, relying on United States v. Hill, 322 F. Supp.
2d 1081 (C.D. Cal. 2004), he asserts that the second consideration,
which asked whether the focal point of the picture is the child’s
genitals or pubic area, was unhelpful in deciding whether a depic-
tion is lascivious because “[a] close-up picture of female genitalia in
a medical textbook will surely be less lascivious than a photograph
showing the entire female body with the pubic area only partially
visible.” Id. at 1085.
But this misses the point. The district court did not instruct
the jury that any one of the additional considerations was disposi-
tive. Instead, it told the jury that a “[l]ascivious exhibition” is an
“indecent exposure of the anus, genitals or pubic area, usually to
incite lust” and that “whether a visual depiction is a lascivious ex-
hibition” depends on “the context and setting in which the anus,
genitalia or pubic area is being displayed.” It told the jury that it
could use the additional considerations to evaluate the context and
setting of the depiction. But the district court did not suggest that
they were exclusive or that any one factor was dispositive.
In fact, Velinov’s example—a close-up picture of female gen-
italia in a medical textbook—shows how the district court’s addi-
tional considerations clarify rather than obscure. Looking to the
full “context and setting in which the genitalia or pubic area is being
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23-12136 Opinion of the Court 23
displayed,” the jury would see no indication in the medical text-
book: that “the setting of the depiction” was “sexually inviting or
suggestive—for example, in a location or in a pose associated with
sexual activity”; that “the minor appear[ed] to be displayed in an
unnatural pose or in inappropriate attire”; that “the depiction ap-
pear[ed] to convey sexual coyness or an apparent willingness to en-
gage in sexual activity”; or that “the depiction appear[ed] to have
been designed to elicit a sexual response in the viewer.” Nor would
the “overall content” of the medical textbook suggest an “indecent
exposure of the [anus,] genitals[,] or pubic area . . . to incite lust.”
If anything, the additional considerations the district court
gave to the jury clarified the line between a lascivious depiction of
the anus, genitals, or pubic area and one that is not. Perhaps that’s
why most of our sister circuits use the same “general principles as
guides for analysis” in determining whether a depiction is a lascivi-
ous exhibition. United States v. Boam, 69 F.4th 601, 609 (9th Cir.
2023) (quoting United States v. Hill, 459 F.3d 966, 972 (9th Cir.
2006)); see also United States v. Deritis, 137 F.4th 209, 219–20 (4th
Cir.), cert. denied, 146 S. Ct. 270 (2025); United States v. Heinrich, 57
F.4th 154, 161 (3d Cir. 2023); United States v. Petroske, 928 F.3d 767,
773 (8th Cir. 2019); United States v. Isabella, 918 F.3d 816, 831 (10th
Cir. 2019); United States v. Spoor, 904 F.3d 141, 148–49 (2d Cir. 2018);
United States v. McCall, 833 F.3d 560, 563 (5th Cir. 2016); United
States v. Hodge, 805 F.3d 675, 680 (6th Cir. 2015). But see United
States v. Hillie, 39 F.4th 674, 689–90 (D.C. Cir. 2022) (explaining that
some of the these additional considerations may “shed light” on
whether a depiction is a lascivious exhibition, but rejecting “the
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24 Opinion of the Court 23-12136
practice of instructing the jury on [them] as a matter of course, or
in a manner that suggests those factors are sufficient to determine
whether given conduct, depicted visually,” is a lascivious exhibi-
tion). Accordingly, we conclude that the jury instruction on these
additional considerations did not render the statutory definition of
“lascivious exhibition” unconstitutionally vague. 5
B. Sentencing Issues
Switching gears, Velinov raises two issues with his sentence.
First, he argues that the district court violated his right to due pro-
cess by relying on the Commission report in rejecting his variance
argument without giving him an opportunity to refute the report.
And second, he challenges his sentence as substantively unreason-
able.
1. Reliance on the Commission’s Report
A district court enjoys “wide latitude in the kinds of infor-
mation it may consider in the sentencing decision.” See United
5 Velinov focused primarily on the jury instructions and how they allegedly
rendered the statutory definition of “lascivious exhibition” unconstitutionally
vague. To the extent that Velinov also argues that 18 U.S.C. § 2256 is uncon-
stitutionally void for vagueness as applied to him because it fails to define with
sufficient definiteness what conduct is prohibited and encourages arbitrary en-
forcement, he failed to raise such an argument below. And he cannot show
plain error because there is no precedent from the Supreme Court or this
Court directly resolving the issue. See United States v. Penn, 63 F.4th 1305, 1318
(11th Cir. 2023) (“There can be no plain error where there is no precedent
from the Supreme Court or this Court directly resolving the issue.” (altera-
tions adopted) (quotation omitted)).
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23-12136 Opinion of the Court 25
States v. Hall, 965 F.3d 1281, 1294 (11th Cir. 2020) (quoting United
States v. Giltner, 889 F.2d 1004, 1007 (11th Cir. 1989)). “A defendant
is not denied due process of law when a judge considers out-of-
court information in determining [his] sentence so long as the de-
fendant is afforded an opportunity to refute it, and it is reliable.”
United States v. Reme, 738 F.2d 1156, 1167 (11th Cir. 1984) (citation
modified). When a defendant claims a due process error because
the district court considered out-of-court information, he must
show that (1) “the challenged evidence is materially false or unreli-
able,” and (2) “it actually served as the basis for the sentence.”
United States v. Ghertler, 605 F.3d 1256, 1269 (11th Cir. 2010). 6
Velinov’s argument that the district court violated his due
process rights by considering the Commission report fails because
he had an opportunity to refute the report, there’s no reason to
believe the report was unreliable, and the district court did not rely
on the report in imposing the sentence. First, the district court af-
forded Velinov an opportunity to refute the report. At the sentenc-
ing hearing, the probation officer, based on the same Commission
report Velinov cited to argue for a downward variance, told the dis-
trict court that the average imprisonment term for offenders con-
victed under the guidelines with the same offense level and crimi-
nal history as Velinov was 323 months. Velinov responded by ob-
6 We review de novo whether a district court’s consideration of out-of-court
information during the sentencing hearing violated the defendant’s right to
due process of law. See Ghertler, 605 F.3d at 1268.
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26 Opinion of the Court 23-12136
jecting that this average likely included offenses involving the “aw-
ful horrible abuse of children.” The district court considered the
objection, and asked the probation officer whether the average in-
cluded cases where criminal defendants had sex with children or
allowed others to have sex with children. The officer replied that it
did not and Velinov did not object further. So Velinov was given,
and took, the opportunity to refute the report.
Second, there’s no due process violation because Velinov
doesn’t argue the average sentence derived from the report was
materially false or unreliable. See Hall, 965 F.3d at 1294 (finding no
due process right violation when defendant did not meet his bur-
den of showing challenged evidence was either materially false or
unreliable); Ghertler, 605 F.3d at 1269 (same). He’d be hard-pressed
to do so since the average sentence came from the same Commis-
sion report Velinov used to argue for a downward departure.
Third, there is no due process violation because the district
court did not base Velinov’s sentence on the Commission report.
See Ghertler, 605 F.3d at 1269. When discussing the report, the dis-
trict court explained that even though it “like[s] to see what other
people have received, . . . statistics aren’t the be-all-end-all” and that
it would “make [its] own decision.” The district court then went
on to make its own decision by examining the case-specific reasons
why a 300-month sentence was appropriate for Velinov, independ-
ent of the report.
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23-12136 Opinion of the Court 27
2. Substantive Reasonableness
Velinov also argues that his below-guideline sentence was
substantively unreasonable. 7 It was not.
A sentence must be “sufficient, but not greater than neces-
sary” to “reflect the seriousness of the offense,” “promote respect
for the law,” “provide just punishment,” “afford adequate deter-
rence,” and “protect the public from further crimes of the defend-
ant.” 18 U.S.C. § 3553(a). “The task is a holistic endeavor that re-
quires the district court to consider a variety of factors,” including
“the nature and circumstances of the offense,” “the defendant’s his-
tory and characteristics,” “the kinds of sentences available,” the ap-
plicable guideline range, the Commission’s policy statements, “the
need to provide restitution to any victims,” and “the need to avoid
unwarranted sentencing disparities.” United States v. Rosales-Bruno,
789 F.3d 1249, 1254 (11th Cir. 2015) (citing 18 U.S.C. § 3553(a)).
The defendant bears “the burden of establishing that the sentence
is unreasonable in light of the record and the [section] 3553(a) fac-
tors.” United States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008).
We “ordinarily expect a sentence within the guideline[] range to be
reasonable.” United States v. Kirby, 938 F.3d 1254, 1259 (11th Cir.
2019) (citation modified).
Velinov has not met his burden to show that his sentence
was substantively unreasonable. “Child sex crimes are among the
7 We review for abuse of discretion the substantive reasonableness of a sen-
tence. United States v. Oudomsine, 57 F.4th 1262, 1266 (11th Cir. 2023).
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28 Opinion of the Court 23-12136
most egregious and despicable of societal and criminal offenses,”
inflicting a “compounding harm” on victims because they “incite
or encourage others to sexually abuse children.” United States v.
Irey, 612 F.3d 1160, 1206, 1208 (11th Cir. 2010) (en banc) (citations
omitted). The district court properly considered the gravity of the
offense and Velinov’s own conduct. It explained that although a
downward variance was appropriate because Velinov’s crimes did
“not fall into the heartland of . . . [cases involving] the use of chil-
dren in a sexual nature and . . . other deviant behavior,” it could
not “overlook what occurred here.”
What occurred here was that Velinov played a major role in
Newstar, an international child exploitation enterprise that harmed
at least one hundred children and made over $9.4 million doing so.
He provided advice to his coconspirators and assisted with the
functioning and maintenance of the websites, the production and
selection of pictures and videos, the creation of advertising ban-
ners, and the pricing, personally receiving over $400,000 for his
role. He knew girls were being harmed but continued to profit off
their suffering for more than a decade. In light of these considera-
tions, Velinov’s 300-month sentence—which was half the guideline
range and well below the statutory maximum—was not unreason-
able. See United States v. Hayden, 119 F.4th 832, 837 (11th Cir. 2024)
(“A sentence within the guideline range and below the statutory
maximum is ordinarily expected to be reasonable.”).
Velinov nevertheless contends that his sentence was unrea-
sonable compared to the lower sentences of his coconspirators. He
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23-12136 Opinion of the Court 29
argues that Tatiana Power—Kenneth Power’s wife—was more
culpable than him and only received 151 months’ imprisonment.
And he points to two other coconspirators, Patrice Wilowski-Me-
vorah and Mary Lou Bjorkman, who were involved in laundering
Newstar’s proceeds and received sixty-three months’ and eighteen
months’ imprisonment respectively. Finally, he asserts that Pavel
Rohel, a photographer convicted in the Czech Republic for sex-
ually abusing girls used by Newstar, was significantly more culpa-
ble than he was and was sentenced to only fifty-four months’ im-
prisonment.
The problem for Velinov is that these examples do not show
unwarranted sentencing disparities because none of them were
similarly situated to him. Section 3553(a) is concerned with sen-
tencing disparities between defendants “found guilty of similar
conduct” on “similar records.” 18 U.S.C. § 3553(a)(6). Tatiana
Power, Wilowski-Mevorah, and Bjorkman pleaded guilty to
money laundering, so they were not “found guilty of similar con-
duct” as Velinov, who was convicted of conspiring to advertise and
distribute visual depictions of minors engaging in sexually explicit
conduct. Id. Tatiana Power and Wilowski-Mevorah also cooper-
ated with the government and testified against Velinov. Defend-
ants who cooperate and plead guilty are not similarly situated to
those who do not cooperate and go to trial. See United States v. Az-
mat, 805 F.3d 1018, 1048 (11th Cir. 2015) (“[T]here is no unwar-
ranted disparity when a cooperating defendant pleads guilty and
receives a lesser sentence than a defendant who proceeds to trial.”
(quoting United States v. Langston, 590 F.3d 1226, 1237 (11th Cir.
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30 Opinion of the Court 23-12136
2009)). As for Rohel, foreign sentences are not relevant compara-
tors because “[s]ection 3553(a)(6) is concerned with unwarranted
disparities in sentences among federal defendants,” not foreign
ones. See United States v. Docampo, 573 F.3d 1091, 1102 (11th Cir.
2009). In short, none of these coconspirators were similarly situ-
ated to Velinov. And their sentences do not call into question the
reasonableness of Velinov’s below-guideline sentence.
AFFIRMED.