FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCT 6, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-12154

Non-Argument Calendar

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D. C. Docket No. 07-00016-CR-1-SPM-AK

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

PEDRO ENRIQUE RIVERA, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Northern District of Florida

_________________________

(October 6, 2008)

Before BIRCH, DUBINA and PRYOR, Circuit Judges.

PER CURIAM:

Appellant Pedro Enrique Rivera appeals his 168-month sentence for
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receiving and distributing child pornography, in violation of 18 U.S.C. §

2252A(a)(2)(A). On appeal, Rivera concedes that the district court properly

calculated his guideline range, but argues that his sentence was both procedurally

and substantively unreasonable because even though he received a guideline

sentence, it did not accurately reflect his conduct. According to Rivera, the

appropriate sentence was the statutory minimum of 60 month’s imprisonment. 

Rivera especially emphasizes the need to avoid disparate sentences among

similarly situated defendants and, in support of his position, cites cases in which

child pornography defendants received a downward variance. See, e.g., United

States v. Pugh, 515 F.3d 1179 (11th Cir. 2008); United States v. Gray, 453 F.3d

1323 (11th Cir. 2006).

We review a sentence for unreasonableness under a “deferential abuse-ofdiscretion standard.” Gall v. United States, 552 U.S. ___,128 S. Ct. 586, 591, 169

L. Ed. 2d. 445 (2007). A sentence is procedurally unreasonable if the district court

failed to calculate or incorrectly calculated the guidelines, treated the guidelines as

mandatory, failed to consider the 18 U.S.C. § 3553(a) factors, selected a sentence

based on clearly erroneous facts, or failed to adequately explain the chosen

sentence. Id. at ___, 128 S. Ct. at 597. A sentence is substantively unreasonable

“if it does not achieve the purposes of sentencing stated in § 3553(a).” Pugh, 515
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F.3d at 1191 (quoting U.S. v. Martin, 455 F.3d 1227, 1237 (11th Cir. 2006)).

Section 3553(a) provides that district courts must consider, inter alia, (1) the

applicable guideline range; (2) the nature and circumstances of the offense; (3) the

history and characteristics of the defendant; (4) the need for the sentence imposed

to reflect the seriousness of the offense, to promote respect for the law, and to

provide just punishment for the offense; (5) the need for adequate deterrence to

criminal conduct; (6) protection of the public from further crimes of the defendant;

and (7) the need to avoid unwarranted sentencing disparities. 18 U.S.C. § 3553(a). 

“The weight to be accorded any given § 3553(a) factor is a matter committed to the

sound discretion of the district court, and we will not substitute our judgment in

weighing the relevant factors.” United States v. Amedeo, 487 F.3d 823, 832 (11th

Cir.) (quotations and alterations omitted), cert. denied, 128 S. Ct. 671 (2007).

In Pugh, a jury convicted the defendant of possessing child pornography, 

and the district court gave him a significant downward variance during sentencing. 

515 F.3d at 1183, 1187. We concluded that the significant downward variance was

substantively unreasonable, in part, because the final sentence did not afford

adequate deterrence to criminal conduct, which “is particularly compelling in the

child pornography context.” Id. at 1194. In addition, we found that the downward

variance did not reflect the seriousness of the offense, the guideline sentencing
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range, and the need to protect the public from further crimes by the defendant. Id.

at 1195, 1200-01.

After reviewing the record and reading the parties’ briefs, we conclude that

Rivera has not met his burden of establishing that his sentence was either

procedurally or substantively unreasonable. Therefore, we affirm Rivera’s

sentence at the low end of the guideline range. 

AFFIRMED.