IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-40680

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

GABRIEL RIOS,

Defendant-Appellant

Appeals from the United States District Court

for the Southern District of Texas

USDC No. 2:10-CR-1233-1

Before WIENER, GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Gabriel Rios appeals his conviction and resulting

120-month within-guidelines sentence for eight counts of possession of child

pornography. Rios argues that the evidence was insufficient to support his

conviction because the government failed to establish that he knowingly

possessed child pornography and that he intended to view child pornography. 

He challenges the substantive reasonableness of his sentence, arguing that it is

greater than necessary to accomplish the sentencing objectives of 18 U.S.C.

United States Court of Appeals

Fifth Circuit

F I L E D

May 17, 2012

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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No. 11-40680

§ 3553(a). Rios further contends that the child pornography Guidelines are not

entitled to deference because they are not empirically based, but Rios correctly

notes that this argument is foreclosed and raises it to preserve for further

possible review. See United States v. Miller, 665 F.3d 114, 119-26 (5th Cir.

2011). Finally, Rios argues that the condition of release compelling him to

submit to psycho-physiological testing, including application of the penile

plethysmograph, is overly broad and constitutes an unnecessary deprivation of

his liberty interests. 

We will uphold the jury’s verdict if a rational trier of fact could conclude

that “the elements of the offense were established beyond a reasonable doubt,

viewing the evidence in the light most favorable to the verdict and drawing all

reasonable inferences from the evidence to support the verdict.” United States

v. Percel, 553 F.3d 903, 910 (5th Cir. 2008) (internal quotation marks and

citation omitted). Direct and circumstantial evidence are weighed equally, and

it is not necessary that the evidence exclude every reasonable hypothesis of

innocence. United States v. Mendoza, 226 F.3d 340, 343 (5th Cir. 2000). We do

“not weigh evidence or assess the credibility of witnesses, and the jury is free to

choose among reasonable constructions of the evidence.” United States v.

Ramos-Cardenas, 524 F.3d 600, 605 (5th Cir. 2008).

Under 18 U.S.C. § 2252A(a)(5)(B), the government was required to prove

that Rios knowingly possessed or accessed, with the intent to view, any material

that contains an image of child pornography that was mailed, shipped, or

transported in or affecting interstate or foreign commerce by any means,

including a computer. 

In the instant case, Rios incriminated himself and was identified as the

most frequent user of the computer. The number of videos found on the

computer, the explicit terms in the titles of the videos referencing child

pornography, and the fact that many of the videos were previewed during the

downloading process showed an intent to possess and access child pornography. 

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Viewing the evidence in a light most favorable to the verdict, a reasonable trier

of fact could have found beyond a reasonable doubt that Rios knowingly

possessed child pornography. 

The substantive reasonableness of a sentence is reviewed for abuse of

discretion. Gall v. United States, 552 U.S. 38, 51 (2007). As Rios’s sentence was

within the guidelines range, his sentence is presumptively reasonable. See

United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). The presumption of

reasonableness “is rebutted only upon a showing that the sentence does not

account for a factor that should receive significant weight, it gives significant

weight to an irrelevant or improper factor, or it represents a clear error of

judgment in balancing sentencing factors.” Id.

In this instant case, the court reflected on the factors of § 3553(a). The

court properly considered deterrence and the need to protect the public from

future crimes. Rios offers nothing to show that the court’s presumptively

reasonable choice of a within-guidelines sentence was an abuse of discretion. See

United States v. Newson, 515 F.3d 374, 379 (5th Cir. 2008). 

Rios’s final argument that the special condition of release compelling him

to submit to treatment that may include psycho-physiologicaltesting constitutes

an unnecessary deprivation of his liberty interests is not ripe for review. See

United States v. Carmichael, 343 F.3d 756, 761-62 (5th Cir. 2003). 

Accordingly, the judgment of the district court is AFFIRMED.

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