United States v. Norman Javier Herrera Pastran

USCA11 Case: 21-13829 Document: 43-1 Date Filed: 08/31/2023 Page: 1 of 24

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-13829

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

NORMAN JAVIER HERRERA PASTRAN,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:20-cr-20107-CMA-1

____________________

USCA11 Case: 21-13829 Document: 43-1 Date Filed: 08/31/2023 Page: 2 of 24

2 Opinion of the Court 21-13829

Before LUCK, LAGOA, and JULIE CARNES, Circuit Judges.

PER CURIAM:

Defendant Norman Herrera Pastran appeals his conviction

on one count of producing child pornography in violation of 18

U.S.C. § 2251(a). He also challenges the procedural and substantive

reasonableness of his 30-year prison sentence and lifetime term of

supervision with computer restrictions. After a careful review of

the record and the briefing submitted by the parties, we AFFIRM.

BACKGROUND

In July 2018, a 12-year-old female (“Minor Victim 1”) and an

11-year-old female (“Minor Victim 2”) (collectively, the “Minor

Victims”) told law enforcement that Defendant Herrera Pastran,

their uncle, had orally and anally penetrated them with his penis

on multiple occasions throughout the past several years and taken

photographs of the abuse. Minor Victim 1 also reported that De-

fendant took the photographs using his “old” cell phone his chil-

dren used to play games.

On August 6, 2018, a state search warrant was executed at

Defendant’s Miami residence and digital devices were seized. De-

fendant’s wife subsequently contacted the Miami Dade County

State Attorney’s Office on October 2, 2018, and reported she had

found Defendant’s old cell phone. A state search warrant executed

on the phone in December 2018 uncovered 47 sexually explicit im-

ages that were consistent with the reports of the Minor Victims.

Specifically, the phone contained images showing Defendant orally

USCA11 Case: 21-13829 Document: 43-1 Date Filed: 08/31/2023 Page: 3 of 24

21-13829 Opinion of the Court 3

and anally penetrating Minor Victim 1 with his penis and anally

penetrating Minor Victim 2 with his penis. The images were taken

on March 17 and 20, 2017, viewed on March 27 and 28, 2017, and

deleted sometime thereafter. The phone was manufactured out-

side of Florida and was thus shipped and transported in interstate

commerce before Defendant used it in 2017.

The father of the victims confirmed that they had stayed at

Defendant’s house from March 17 through March 20, 2017. After

reviewing censored versions of the images, the parents identified

both Minor Victims as the children in the images. In some of the

images, Defendant is wearing blue pants, and Defendant’s couch,

uniquely patterned rug, and blanket are all visible. The FBI re-

trieved the pants seen in the images from Defendant’s lawyer pur-

suant to a federal search warrant and obtained a search warrant for

Defendant’s DNA and photographs of his body. A forensic analysis

confirmed that the DNA found on the pants matched Defendant’s

DNA.

Based on the above facts, Defendant was indicted on two

counts of production of child pornography in violation of 18 U.S.C.

§ 2251(a) and (e), one count for each Minor Victim. He pled guilty

to Count 1 in a plea agreement under which the Government

agreed to seek the dismissal of Count 2. The probation office pre-

pared a presentence investigation report (“PSR”) prior to Defend-

ant’s sentencing.

The PSR described the offense conduct set out above, and it

also revealed that several years prior to committing those offenses,

USCA11 Case: 21-13829 Document: 43-1 Date Filed: 08/31/2023 Page: 4 of 24

4 Opinion of the Court 21-13829

Defendant had sexually abused a third victim (“Minor Victim 3”).

Minor Victim 3, the 14-year-old sister of Minor Victims 1 and 2,

reported that when she was seven, Defendant inserted his fingers

into her vagina while he was giving her a bath. The PSR also de-

scribed additional conduct with respect to Minor Victims 1 and 2.

Specifically, on one occasion, Defendant placed his penis in Minor

Victim 2’s mouth while Minor Victim 1 watched. Defendant then

placed his penis into Minor Victim 1’s anus as Minor Victim 2

watched. Minor Victim 1 also reported that Defendant showed her

pornography and said, “we should do this one day.”

The PSR assigned Defendant a base offense level of 32 under

USSG § 2G2.1(a). Defendant received a 2-level increase pursuant

to § 2G2.1(b)(1)(B) because his offense involved a minor between

the ages of twelve and sixteen, a 2-level increase under

§ 2G2.1(b)(2)(A) because the offense involved the commission of a

sexual act, a 2-level increase under § 2G2.1(b)(5) because Defend-

ant was the victim’s uncle, and a 5-level increase because he was

determined to be a repeat and dangerous sex offender against mi-

nors under USSG § 4B1.5(b)(1). After applying a 3-level reduction

for acceptance of responsibility, Defendant’s total offense level was

set at 40. Based on a total offense level of 40 and a criminal history

category of I, the PSR calculated Defendant’s recommended guide-

lines range as 292 to 365 months, but because the statutory maxi-

mum term of imprisonment for Defendant’s offense was 30 years,

the PSR set his recommended guidelines range at 292 to 360

months per USSG § 5G1.1(c)(1). The PSR noted that the Govern-

ment had agreed to seek the dismissal of Count 2, and that

USCA11 Case: 21-13829 Document: 43-1 Date Filed: 08/31/2023 Page: 5 of 24

21-13829 Opinion of the Court 5

Defendant’s recommended guidelines range would have been life

if he had pled guilty to both counts.

In addition to imprisonment, the PSR recommended a su-

pervised release term of five years to life under USSG § 5D1.2(b)(2).

Among other special conditions of supervision, the PSR recom-

mended a computer modem restriction and a computer possession

restriction. The computer modem restriction stated that “[t]he de-

fendant shall not possess or use a computer that contains an inter-

nal, external or wireless modem without the prior approval of the

[c]ourt.” The computer possession restriction stated that “[t]he de-

fendant shall not possess or use any computer; except that the de-

fendant may, with the prior approval of the [c]ourt, use a computer

in connection with authorized employment.”

At Defendant’s sentencing hearing, the mother of the vic-

tims made a victim impact statement describing the harm Defend-

ant’s abuse had caused the Minor Victims and the entire family.

She stated that “[t]he acts committed against our girls are every

parent’s worst nightmare.” Then she discussed how Defendant’s

actions had permanently changed her daughters, robbing them of

their sense of security and safety. After describing the emotional

impact of Defendant’s conduct on the family, the mother empha-

sized the manipulative, calculated nature of Defendant’s acts. At

the conclusion of her statement, the mother asked the court to sen-

tence Defendant to the maximum sentence of 30 years in prison

“so as to not only protect our daughters, but your daughter, your

USCA11 Case: 21-13829 Document: 43-1 Date Filed: 08/31/2023 Page: 6 of 24

6 Opinion of the Court 21-13829

family and friends’ daughters, everyone’s daughters, including [De-

fendant’s] own little girl.”

The Government subsequently recited the salient facts from

the PSR, highlighting that “[t]his case is not based on an isolated

incident but repeated abuse of at least three very young girls over

an extended period of time.” The Government emphasized that

the victims could not be made whole and that they would struggle

with Defendant’s abuse for the rest of their lives. The Government

also asserted that Defendant had shown a “deviant sexual interest

in children” and “whether [he was] 45 or 65 or 85, he [would] pose

a danger to the community for as long as he is alive.” For these

reasons and based on the 18 U.S.C. § 3553(a) factors—specifically,

the nature and circumstances of Defendant’s offense and the need

for his sentence to promote respect for the law and protect the pub-

lic—the Government requested the maximum sentence of 30 years

in prison, followed by lifetime supervision subject to the special

conditions listed in the PSR.

Defendant responded with a request to be sentenced at the

bottom of the guidelines range. Defendant emphasized that he was

not seeking a variance. Rather, he argued, a low guidelines range

sentence accomplished all the objectives of sentencing in his case.

Defendant noted further that such a sentence would help him ob-

tain the appropriate medical care for his serious heart condition,

which he claimed would require constant attention while in prison.

Defendant highlighted his military service of ten years and his

USCA11 Case: 21-13829 Document: 43-1 Date Filed: 08/31/2023 Page: 7 of 24

21-13829 Opinion of the Court 7

acceptance of responsibility. Finally, Defendant discussed his own

emotional suffering as well as his family’s suffering since his arrest.

After acknowledging the arguments made by both parties,

the district court expressly considered the relevant § 3553(a) fac-

tors, focusing on Defendant’s history and characteristics, the need

for general and specific deterrence, the need to promote respect for

the law, and the nature and circumstances of the offense conduct.

As to the latter of these factors, the court stated:

[H]ow does one describe years and years, from 2011

to 2017, years of a grown man raping little girls in his

home? Raping them vaginally, anally and filming

them, photographing them. How does one describe

that? How does one describe destroying innocent

girls’ lives, destroying them and their family’s lives?

The court noted that while Defendant might miss his young chil-

dren and wife, he had lost the right to live in a free society with

them or to be in unsupervised contact with his little girls and other

little girls. And ultimately, the court agreed with the Government

that “only a high end of the guideline[s] sentence [would] suffice”

in Defendant’s case due to the “unspeakable” and “[i]ndescribable”

acts Defendant had committed. The court then sentenced Defend-

ant to 30 years in prison as to Count 1, to be followed by a lifetime

term of supervised release with the special conditions described

above. The court dismissed Count 2 per the Government’s mo-

tion.

USCA11 Case: 21-13829 Document: 43-1 Date Filed: 08/31/2023 Page: 8 of 24

8 Opinion of the Court 21-13829

Defendant objected to the imposition of lifetime supervision

for three reasons: (1) he had no prior arrests, (2) his age at the time

of his expected release, and (3) his documented family support. He

subsequently filed this appeal. In his appellate briefing, Defendant

challenges the validity of his conviction under 18 U.S.C. § 2251(a),

arguing that § 2251(a) exceeds the power of Congress under the

Commerce Clause. Defendant also argues that his sentence is pro-

cedurally and substantively unreasonable and that the computer

restriction applied in his case is unconstitutional.

DISCUSSION

I. Defendant’s conviction under 18 U.S.C. § 2251(a) does

not violate the Commerce Clause.

Defendant argues on appeal that his conviction for produc-

tion of child pornography under § 2251(a) is unconstitutional be-

cause his case has only a tenuous link to interstate commerce—

namely, the device Defendant used to record his sexual abuse trav-

eled in interstate commerce. According to Defendant, Congress

can only regulate non-economic criminal activity if that activity

substantially affects interstate commerce. Defendant insists that

his offense did not meet that requirement because it was purely

local. He notes that there is no evidence he used the internet to

facilitate his crime or that the images he recorded were related to

an online market or otherwise entered the stream of commerce.

This Court ordinarily reviews a constitutional challenge to a

conviction de novo, but plain error review applies when a defendant

raises his constitutional challenge for the first time on appeal, as

USCA11 Case: 21-13829 Document: 43-1 Date Filed: 08/31/2023 Page: 9 of 24

21-13829 Opinion of the Court 9

Defendant has done here. United States v. Wright, 607 F.3d 708, 715

(11th Cir. 2010). This standard requires “that there be error, that

the error be plain, and that the error affect a substantial right.”

United States v. Laines, 69 F.4th 1221, 1229 (11th Cir. 2023) (citation

and quotation marks omitted). If all three requirements are satis-

fied, the Court may “exercise [its] discretion to notice the forfeited

error if the error seriously affects the fairness, integrity, or public

reputation” of the judicial proceeding. Id. (citation and quotation

marks omitted).

An error qualifies as “plain” for purposes of plain error re-

view only if it is clearly established by the “explicit language of a

statute or rule” or “precedent from the Supreme Court or this

Court.” United States v. Castro, 455 F.3d 1249, 1253 (11th Cir. 2006)

(quotation marks omitted). For the reasons discussed below, there

is no such error with respect to the constitutionality of Defendant’s

conviction under § 2251(a).

The statute Defendant was convicted of violating

states that:

[a]ny person who employs, uses, persuades, induces,

entices, or coerces any minor to engage in . . . any

sexually explicit conduct for the purpose of producing

any visual depiction of such conduct . . . shall be pun-

ished as provided under subsection (e) . . . if that vis-

ual depiction was produced or transmitted using ma-

terials that have been mailed, shipped, or transported

USCA11 Case: 21-13829 Document: 43-1 Date Filed: 08/31/2023 Page: 10 of 24

10 Opinion of the Court 21-13829

in or affecting interstate or foreign commerce by any

means.

18 U.S.C. § 2251(a). On its face, the statute “requires only that a

defendant arrange for a minor to engage in sexually explicit con-

duct for the purpose of creating a visual depiction, and that there

be some nexus to interstate or foreign commerce.” United States v.

Ruggiero, 791 F.3d 1281, 1284–85 (11th Cir. 2015). In this case, the

required nexus was provided by Defendant’s use of a device to rec-

ord the offending images that had been manufactured out of state

and transported in interstate commerce.

In United States v. Maxwell, 386 F.3d 1042, 1045 (11th Cir.

2004) (“Maxwell I”), vacated, 546 U.S. 801 (2005), this Court ad-

dressed the validity under the Commerce Clause of 18 U.S.C.

§ 2252A(a)(5)(B), a federal statute criminalizing the possession of

child pornography that has been transported using “any means” of

interstate commerce. Maxwell I, 386 F.3d at 1051. The Court held

that the statute, which contains a similar jurisdictional hook to

§ 2251(a), violated the Commerce Clause because there was noth-

ing commercial or economic about the intrastate possession of

child pornography, even if it had been saved on computer disks im-

ported from out of state and transported in interstate commerce.

Id. at 1056–61. In so holding, the Court concluded that the “aggre-

gate approach,” which looks beyond the isolated conduct of the de-

fendant and considers the aggregate effect of such possession by

others throughout the country, could not apply to Maxwell’s con-

duct that was noneconomic and intrastate in nature. Id. at 1059–

USCA11 Case: 21-13829 Document: 43-1 Date Filed: 08/31/2023 Page: 11 of 24

21-13829 Opinion of the Court 11

60. Doing so, the Court explained, would “essentially vest[] gen-

eral police powers with the federal government.” Id.

However, the United State Supreme Court subsequently

held in Gonzales v. Raich, 545 U.S. 1 (2005), that the Controlled Sub-

stances Act (“CSA”) did not violate the Commerce Clause as ap-

plied to the purely intrastate cultivation of marijuana, holding that

“Congress had a rational basis for believing that failure to regulate

the intrastate manufacture and possession of marijuana would

leave a gaping hole in the CSA.” Raich, 545 U.S. at 22. Shortly

thereafter, the Supreme Court granted certiorari in Maxwell I, va-

cated this Court’s decision, and remanded the case for further con-

sideration under Raich. United States v. Maxwell, 546 U.S. 801

(2005). On remand, this Court concluded there was “very little to

distinguish constitutionally Maxwell’s claim from Raich’s.” United

States v. Maxwell, 446 F.3d 1210, 1216 (11th Cir. 2006) (“Maxwell II”).

The Court thus held that Raich necessarily led to the conclusion

that “it is within Congress’s authority to regulate all intrastate pos-

session of child pornography, not just that which has traveled in

interstate commerce.” Id. at 1218.

After Maxwell II, this Court specifically analyzed § 2251(a)’s

validity under the Commerce Clause in United States v. Smith, 459

F.3d 1276 (11th Cir. 2006). As relevant here, Smith was convicted

of one count of producing child pornography in violation of

§ 2251(a). Id. at 1281. His conviction was based on the testimony

of a 14-year-old girl who stated that Smith had paid her to take nude

photographs in sexually suggestive positions and a search of

USCA11 Case: 21-13829 Document: 43-1 Date Filed: 08/31/2023 Page: 12 of 24

12 Opinion of the Court 21-13829

Smith’s home that uncovered nearly two thousand photos in a

lockbox that contained sexually explicit images, many of which de-

picted “very young girls . . . with a male who [was later] identified

as [Smith].” Id.

The Government did not attempt to show the images un-

derlying Smith’s conviction traveled or were produced with the in-

tent to travel in interstate commerce. Id. at 1282. Rather, the Gov-

ernment provided evidence that the photographs were printed and

processed using Kodak paper and other equipment manufactured

and shipped from out of state. Id. Like Defendant, Smith chal-

lenged the constitutionality of his conviction on Commerce Clause

grounds, raising the issue for the first time on appeal. See id. This

Court held that, under Raich and Maxwell II, Smith’s appeal failed

because he could not establish any error, much less plain error. Id.

at 1284. Per Raich and Maxwell II, the Court explained, “Congress

may regulate purely intrastate activity, whether economic or not,

that could be rationally considered incident to Congress’s compre-

hensive regulation of interstate economic activity.” Id. Section

2251(a) “is part of [such] a comprehensive regulatory scheme crim-

inalizing the receipt, distribution, sale, production, possession, so-

licitation and advertisement of child pornography.” Id. at 1285 (ci-

tation and quotation marks omitted). Further, “Congress could

have rationally concluded that the inability to regulate intrastate

possession and production of child pornography would, in the ag-

gregate, undermine Congress’s regulation of the interstate child

pornography market.” Id. As such, Smith’s conviction under

§ 2251(a) did not violate the Commerce Clause. Id.

USCA11 Case: 21-13829 Document: 43-1 Date Filed: 08/31/2023 Page: 13 of 24

21-13829 Opinion of the Court 13

Defendant’s argument that his conviction under § 2251(a)

violates the Commerce Clause is foreclosed by this Court’s deci-

sion in Smith, which upheld the facial constitutionality of § 2251(a)

and sanctioned its application to facts that are materially indistin-

guishable from the facts of this case for purposes of the Commerce

Clause analysis. In Smith, the only connection to interstate com-

merce asserted by the Government was the means used to produce

the child pornography: Kodak paper and processing equipment

that were manufactured out of state and had traveled in interstate

commerce. Similarly, Defendant used a cell phone that was man-

ufactured outside the state of Florida and had traveled in interstate

commerce. Thus, per this Court’s decision in Smith, Defendant

cannot show any error in his § 2251(a) conviction under the Com-

merce Clause, much less plain error. See also Ruggiero, 791 F.3d at

1289 (“Our sister circuits have been of one voice in rejecting Com-

merce Clause challenges to § 2251(a), and we join the chorus.”)

(footnote omitted); United States v. Grzybowicz, 747 F.3d 1296,

1306–07 & n.9 (11th Cir. 2014) (rejecting the defendant’s Com-

merce Clause challenge to his § 2251(a) conviction and reaffirming

that the interstate commerce element of such a conviction is “sat-

isfied by proof that the child pornography . . . was produced using

materials that had been transported in interstate or foreign com-

merce”).

Defendant argues in his appellate briefing that this Court’s

holding in Maxwell II, which laid the groundwork for Smith, was

incorrectly decided. According to Defendant, the Commerce

Clause requires more of a nexus to interstate commerce than this

USCA11 Case: 21-13829 Document: 43-1 Date Filed: 08/31/2023 Page: 14 of 24

14 Opinion of the Court 21-13829

Court determined was necessary in Maxwell II and Smith. But un-

der the prior panel precedent rule, Smith and Maxwell II are binding

on this Court unless and until those cases are overruled or under-

mined to the point of abrogation by the Supreme Court or by this

Court sitting en banc. United States v. Archer, 531 F.3d 1347, 1352

(11th Cir. 2008). Thus, Defendant’s argument is unavailing. Smith

and Maxwell II are controlling, and they are determinative of De-

fendant’s Commerce Clause challenge. As such, we affirm Defend-

ant’s conviction under § 2251(a).

II. Defendant’s sentence is procedurally and substantively

reasonable.

Defendant also contends that his 30-year prison sentence

and lifetime term of supervision are procedurally and substantively

unreasonable. He also argues that the computer restrictions im-

posed as special conditions of his supervised release must be va-

cated because they are unconstitutional and not reasonably related

to the circumstances of his offense. We are not persuaded by either

argument.

A. Reasonableness of Defendant’s Sentence

We use a two-step process to review the reasonableness of

Defendant’s sentence. See United States v. Cubero, 754 F.3d 888, 892

(11th Cir. 2014). First, we determine whether the sentence is pro-

cedurally sound. See id. Assuming it is, we then examine whether

the sentence is substantively reasonable given the totality of the

circumstances and the sentencing factors set out in 18 U.S.C.

USCA11 Case: 21-13829 Document: 43-1 Date Filed: 08/31/2023 Page: 15 of 24

21-13829 Opinion of the Court 15

§ 3553(a). 1 Id. At both steps of the process, the party challenging

the sentence bears the burden of showing it is unreasonable. See

United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir. 2008).

As to the first step of the process, a sentence is procedurally

unreasonable only if the district court commits a “significant pro-

cedural error,” such as failing to calculate or incorrectly calculating

the guidelines range, treating the guidelines as mandatory, failing

to consider the § 3553(a) factors, selecting a sentence based on

clearly erroneous facts, or failing to adequately explain the chosen

sentence. Id. at 1190. It is undisputed that the court correctly cal-

culated Defendant’s advisory guidelines range, did not treat the

guidelines as mandatory in his case, and sentenced him based on

facts that were agreed upon by the parties. Nevertheless, Defend-

ant argues the court procedurally erred because (1) it failed to con-

sider certain mitigating factors—specifically, Defendant’s ac-

ceptance of responsibility, military service, and health conditions—

when it sentenced him to the maximum, 30-year prison sentence

1 The § 3553(a) factors include: (1) the nature and circumstances of the of-

fense and the history and characteristics of the defendant, (2) the need to re-

flect the seriousness of the offense, to promote respect for the law, and to pro-

vide just punishment for the offense, (3) the need for deterrence, (4) the need

to protect the public, (5) the need to provide the defendant with needed edu-

cation or vocational training or medical care, (6) the kinds of sentences availa-

ble, (7) the sentencing guidelines range, (8) pertinent policy statements of the

sentencing commission, (9) the need to avoid unwarranted sentencing dispar-

ities, and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).

USCA11 Case: 21-13829 Document: 43-1 Date Filed: 08/31/2023 Page: 16 of 24

16 Opinion of the Court 21-13829

and (2) it did not explain why it decided to impose a lifetime term

of supervised release.

Contrary to Defendant’s argument, the record reflects the

district court’s express and careful consideration of the relevant

§ 3553(a) factors to arrive at a sentence of 30 years in prison plus a

lifetime of supervision. The court heard argument from defense

counsel as to all the mitigating factors noted above, including De-

fendant’s military service, heart condition, and acceptance of re-

sponsibility. It was not required to discuss each of these factors in

detail. See United States v. Kuhlman, 711 F.3d 1321, 1326 (11th Cir.

2013) (explaining that the sentencing court is required only to set

forth enough information to show it has considered the arguments

made by the parties and has a reasoned basis for making its deci-

sion).

Ultimately, the district court decided that 30 years in prison

plus a lifetime of supervision was “sufficient but not greater than

necessary to achieve the objectives [of] sentencing” and that any

mitigating factors were outweighed by the horrific facts underlying

Defendant’s offense, which involved “years and years . . . of a

grown man raping little girls in his home[.] Raping them vaginally,

anally and filming them, photographing them.” That decision was

well within the court’s discretion. See United States v. Rosales-Bruno,

789 F.3d 1249, 1254 (11th Cir. 2015) (emphasizing that the “decision

about how much weight to assign a particular sentencing factor is

committed to the sound discretion of the district court.” (quotation

marks omitted)).

USCA11 Case: 21-13829 Document: 43-1 Date Filed: 08/31/2023 Page: 17 of 24

21-13829 Opinion of the Court 17

Nor did the district court fail to explain its decision to impose

a lifetime term of supervision or base that decision on improper

factors, as Defendant argues. Given the facts underlying Defend-

ant’s offense as recited in the PSR and the factual proffer, the Gov-

ernment argued at sentencing that Defendant would “pose a dan-

ger to the community for as long as he is alive” because he had a

demonstrated “deviant sexual interest in children.” The court

agreed, stating that Defendant had “lost the right to be in unsuper-

vised contact with [his] little girl, with other little girls” because of

his “repeated acts, unspeakable acts, [i]ndescribable acts” to unsus-

pecting little girls who were members of his family. The court’s

rationale for sentencing Defendant to a lifetime term of supervi-

sion—namely, that such a sentence was necessary to deter and pro-

tect the public from Defendant following his incarceration—is thus

evident from the record, and no further explanation was required.

See United States v. Hamilton, 66 F.4th 1267, 1275 (11th Cir. 2023)

(affirming a sentence including lifetime supervision and noting that

§ 3553 does not require the district court to make an additional,

separate explanation for the supervised release term). Moreover,

it is apparent that the decision was based on legitimate factors, such

as deterrence and protecting the public, rather than the retributive

considerations of § 3553(a), which are excluded from the factors to

be considered when imposing a term of supervised release. See 18

U.S.C. § 3583(c) (excluding the seriousness and just punishment

factors of § 3553(a) from the supervised release inquiry).

Turning to the second step of the analysis, we review the

substantive reasonableness of Defendant’s sentence under a

USCA11 Case: 21-13829 Document: 43-1 Date Filed: 08/31/2023 Page: 18 of 24

18 Opinion of the Court 21-13829

“deferential abuse of discretion standard.” United States v. Early, 686

F.3d 1219, 1221 (11th Cir. 2012) (citing Gall v. United States, 552 U.S.

38 (2007)). Substantive reasonableness is measured based on the

“totality of the . . . circumstances” considering the § 3553(a) factors.

See United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010). Gen-

erally, a sentence is substantively reasonable unless it “lies outside

the range of reasonable sentences dictated by” those circumstances

and factors. Id. at 1190 (citation and quotation marks omitted).

Consequently, Defendant cannot prevail on his substantive reason-

ableness claim just by showing that a lesser sentence would also be

reasonable or may even be more reasonable to some judges. See

id. at 1191 (“A district court’s sentence need not be the most appro-

priate one, it need only be a reasonable one.”). Instead, he must

show that the district court (1) failed to consider relevant facts that

were due significant weight, (2) gave significant weight to an im-

proper or irrelevant factor, or (3) committed a clear error of judg-

ment in considering the proper factors. Rosales‑Bruno, 789 F.3d at

1256 (quotation marks omitted).

Defendant does not show any such failure or clear error of

judgment here. We note at the outset that his 30-year prison sen-

tence, followed by lifetime supervision, is within the guidelines

range. “Although we do not automatically presume a sentence

within the guidelines range is reasonable, we ordinarily expect

[such] a sentence . . . to be reasonable.” United States v. Hunt, 526

F.3d 739, 746 (11th Cir. 2008) (quotation marks omitted).

USCA11 Case: 21-13829 Document: 43-1 Date Filed: 08/31/2023 Page: 19 of 24

21-13829 Opinion of the Court 19

Furthermore, the record reflects that the district court con-

ducted an individualized assessment of the facts at sentencing and

ultimately determined that the maximum sentence of 30 years in

prison plus lifetime supervision was necessary and warranted by

the specific facts of this case. After expressly listing all the relevant

factors, the court determined that only a high end of the guidelines

sentence would suffice due to the nature and circumstances of De-

fendant’s offense—specifically, the facts that (1) Defendant sexually

abused three young girls who had been entrusted to him by their

parents and (2) the abuse was not an isolated incident but rather

took place over years and years, and it destroyed the lives of the

young victims and their family. Again, the court’s emphasis on the

nature and circumstances of Defendant’s offense was within its dis-

cretion, as was its conclusion that a high-end guidelines sentence

and lifetime supervision were appropriate given the facts underly-

ing Defendant’s offense in this case. See Ramirez‑Gonzalez, 755 F.3d

at 1272–73 (“The weight accorded to each factor [] is a matter com-

mitted to the sound discretion of the district court.” (quotation

marks omitted)).

B. Computer Restrictions

We generally review the imposition of special conditions of

supervised release for abuse of discretion. See United States v. Mo-

ran, 573 F.3d 1132, 1137 (11th Cir. 2009). But because Defendant

failed to object to the computer restrictions below, plain error re-

view applies. See United States v. Wright, 607 F.3d 708, 715 (11th

Cir. 2010). As discussed above, this Court will reverse under plain

USCA11 Case: 21-13829 Document: 43-1 Date Filed: 08/31/2023 Page: 20 of 24

20 Opinion of the Court 21-13829

error review only if the district court committed a plain error that

affected the defendant’s substantial rights and that would seriously

undermine the fairness or integrity of the proceeding if left uncor-

rected. See Laines, 69 F.4th at 1229. Further, an error can only be

plain if the express language of a statute or rule or binding prece-

dent directly resolves the relevant issue in a manner contrary to the

district court’s ruling. See Castro, 455 F.3d at 1253.

As relevant here, the governing statute authorizes a sentenc-

ing court to impose any special conditions of supervised release it

considers appropriate so long as the conditions (1) are reasonably

related to the § 3553(a) sentencing factors, (2) involve no greater

deprivation of liberty than is reasonably necessary to achieve the

sentencing objectives of § 3553(a), and (3) are consistent with any

pertinent policy statements issued by the Sentencing Commission.

See 18 U.S.C. § 3583(d). The pertinent Sentencing Commission pol-

icy statement specifically recommends that the sentencing court

impose a special condition “limiting the use of a computer or an

interactive computer service in [sex offense] cases in which the de-

fendant used such items.” USSG § 5D1.3(d)(7)(B).

The statutes cited above do not clearly resolve the issue

whether the district court erred when it imposed the computer re-

strictions applied to Defendant in this case. Based on its plain lan-

guage, § 3583(d) authorizes such a condition so long as it is related

to the § 3553(a) factors, consistent with any relevant provisions of

the sentencing guidelines, and no more restrictive than reasonably

necessary. 18 U.S.C. § 3583(d). The district court did not obviously

USCA11 Case: 21-13829 Document: 43-1 Date Filed: 08/31/2023 Page: 21 of 24

21-13829 Opinion of the Court 21

violate any of those limitations here. Likewise, USSG § 5D1.3(d)(7)

recommends a condition limiting computer use in cases in which

the defendant used a computer to commit a sex offense, but it does

not preclude such a condition when the defendant has committed

a sex offense without the use of a computer. Indeed, the introduc-

tory language of § 5D1.3(d) makes clear that a computer use re-

striction “may otherwise be appropriate”—in other words, the dis-

trict court has the discretion to impose such a restriction—in a par-

ticular case even if the defendant did not use a computer to commit

his offense. USSG § 5D1.3(d).

Nor have we found any precedent from the Supreme Court

or this Court clearly establishing that it was error for the district

court to impose the computer restrictions ordered in this case.

This Court has on several occasions rejected a sex offender’s claim

of plain error based on special conditions restricting computer use

and internet access during a lifetime term of supervision. See United

States v. Carpenter, 803 F.3d 1224, 1239–40 (11th Cir. 2015) (holding

that a district court did not plainly err when it imposed a computer

restriction as part of a lifetime term of supervised release and em-

phasizing that such access could enable a sex offender to offend

once again); United States v. Bobal, 981 F.3d 971, 976 (11th Cir. 2020)

(“A district court does not commit plain error by imposing a com-

puter restriction as a special condition of supervised release, even

if the term of supervised release is life.”). Noting that it already had

upheld a restriction on a sex offender’s ability to use the internet as

a “necessary and reasonable condition of supervised release” over

a three-year period of supervised release, the Court in Bobal

USCA11 Case: 21-13829 Document: 43-1 Date Filed: 08/31/2023 Page: 22 of 24

22 Opinion of the Court 21-13829

concluded that it was not plain error to impose the same type of

restriction when the term is life. Bobal, 981 F.3d at 976 (citing

United States v. Zinn, 321 F.3d 1084, 1086, 1093 (11th Cir. 2003)).

Like the computer restrictions applied in Carpenter and Bobal, the

restriction here included an exception for Defendant to access the

internet and to use a computer in connection with employment

with prior court approval.

Defendant argues the Supreme Court’s decision in Packing-

ham v. North Carolina, 582 U.S. 98 (2017) clearly establishes the dis-

trict court’s error in imposing the computer restrictions at issue

here. In Packingham, the Supreme Court held that a North Carolina

law making it a felony for a registered sex offender to access social

media websites, including common sites like Facebook and Twit-

ter, violated the First Amendment. Id. at 109. But the Court in

Packingham emphasized that its opinion “should not be interpreted

as barring a State from enacting more specific laws” than the North

Carolina statute at issue in that case. Id. at 107. And as this Court

explained in Bobal, Packingham is distinguishable for at least two

reasons that are specifically applicable here. 2 First, the North

2 Bobal also distinguished Packingham on a third ground that arguably is rele-

vant here. Specifically, the state law in Packingham applied to all registered sex

offenders, not only those who used a computer or some other means of elec-

tronic communication to commit their offenses. See Bobal, 981 F.3d at 977.

Defendant used a smartphone, which is an electronic device akin to a com-

puter, to commit the offense in this case, albeit there is less direct of a relation-

ship between the offense conduct and the computer restriction than there was

in Bobal.

USCA11 Case: 21-13829 Document: 43-1 Date Filed: 08/31/2023 Page: 23 of 24

21-13829 Opinion of the Court 23

Carolina law at issue in Packingham “restricted sex offenders even

after they had completed their sentences.” Bobal, 981 F.3d at 977.

Defendant’s restriction, “by contrast, is a special condition of his

supervised release and does not extend beyond his sentence.” Id.

Second, Defendant’s computer restriction “is not a complete bar to

the exercise of his First Amendment rights” like the statute in Pack-

ingham. Id. (quotation marks omitted and alterations accepted).

“Instead, it allows [Defendant] to obtain court permission” to ac-

cess the internet or “to use a computer in connection with employ-

ment.” Id. Defendant “can also ask the district court to modify the

terms of his supervised release,” meaning he is not “without re-

course to protect his First Amendment rights.” Id. Because of these

distinctions, Packingham does not clearly establish that the district

court erred when it imposed the computer restrictions at issue in

this case. See also United States v. Coglianese, 34 F.4th 1002, 1010

(11th Cir. 2022) (upholding a computer restriction applicable dur-

ing the defendant’s 30-year term of supervised release and noting

that, even after Packingham, this Court has “uniformly upheld sim-

ilar restrictions, so long as the defendant . . . has the ability to seek

permission from the probation office to use a computer and/or ac-

cess the internet for specified purposes”).

Finally, while computer restrictions like the one imposed in

this case are often applied to defendants who used computers or

the internet to commit their offenses, that is not always the case.

On at least one occasion, this Court has upheld a special condition

restricting computer use like the one described in USSG

§ 5D1.3(d)(7)(B) in a case where the defendant had a history of

USCA11 Case: 21-13829 Document: 43-1 Date Filed: 08/31/2023 Page: 24 of 24

24 Opinion of the Court 21-13829

sexual battery that did not involve child pornography or the use of

electronic devices of any kind. See Moran, 573 F.3d at 1136 (uphold-

ing a restriction on internet access where the defendant was a sex

offender with no history of using the internet, a computer, or any

electronic device for his offenses, and where the offense did not in-

volve child pornography). More importantly, Defendant does not

cite, and we have not found any precedent that precludes the im-

position of such a restriction on the ground that the defendant did

not use a computer to commit his offense. As such, reversal is not

warranted under the plain error standard. See Laines, 69 F.4th at

1229.

CONCLUSION

For the foregoing reasons, we hold that Defendant’s convic-

tion under 18 U.S.C. § 2251(a) does not violate the Commerce

Clause, Defendant’s 30-year sentence to be followed by a lifetime

term of supervised release is procedurally and substantively reason-

able, and the district court did not plainly err in imposing com-

puter-possession and computer-modem restrictions as special con-

ditions of Defendant’s lifetime term of supervised release. We

therefore AFFIRM.