[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

Nos. 11-15461; 12-12321

Non-Argument Calendar

________________________

D.C. Docket No. 1:11-cr-20265-JAL-1

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

JAMES ROBERT RICHARDSON, 

Defendant-Appellant.

________________________

Appeals from the United States District Court

for the Southern District of Florida

________________________

(May 2, 2013)

Before: CARNES, BARKETT, and PRYOR, Circuit Judges.

PER CURIAM: 

James Robert Richardson appeals his convictions and sentence of 210 

months of imprisonment for three counts of distributing child pornography, 18 

Case: 12-12321 Date Filed: 05/02/2013 Page: 1 of 7 
2

U.S.C. § 2252(a)(2), and one count of possessing child pornography, id.

§ 2252(a)(4)(B). Richardson challenges the denial of his motion to suppress, the 

admission of video recordings of child pornography, and the denial of his motion 

for a new trial. Richardson also challenges the denial of his request for a 

downward departure and the reasonableness of his sentence. We affirm.

Richardson argues that the district court should have suppressed the video

recordings seized from his residence during the execution of a search warrant 

because there was stale information in the underlying affidavit, but we need not 

address this argument because Richardson waived any challenge to an alternative 

ground for that ruling. The district court determined that the warrant was 

supported by probable cause and ruled, in the alternative, that the agents acted in 

good faith by relying on the search warrant, see United States v. Leon, 468 U.S. 

897, 922, 104 S. Ct. 3405, 3420 (1984). Richardson failed to challenge the 

alternative ruling in his initial brief. See United States v. Jernigan, 341 F.3d 1273, 

1284 n.8 (11th Cir. 2003).

The district court also did not abuse its discretion by admitting into evidence 

short segments of some of the pornographic video recordings. Richardson argues 

that the prejudicial effect of the explicit videos outweighed their probative value 

given his stipulation that they contained child pornography, but Richardson 

contested the issue of his mens rea. In recognition that all incriminating evidence 

Case: 12-12321 Date Filed: 05/02/2013 Page: 2 of 7 
3

is inherently prejudicial, Federal Rule of Evidence 403 excludes evidence of only 

“scant or cumulative probative force,” United States v. King, 713 F.2d 627, 631 

(11th Cir. 1983), and “is not designed to permit the court to ‘even out’ the weight 

of the evidence, to mitigate a crime, or to make a contest where there is little or 

none,” United States v. McRae, 593 F.2d 700, 707 (5th Cir. 1979). The video

recordings are probative of whether Richardson knew the videos depicted minors 

engaging in sexually explicit conduct and intended to distribute those videos in 

interstate commerce. See United States v. Dodds, 347 F.3d 893, 899 (11th Cir. 

2003). As Richardson acknowledged during a pretrial hearing, “[t]he government 

[was] . . . very good in limiting the amount” of video footage to show the jury. Of 

the 118 videos that Richardson possessed, the government prepared segments of 

less than three and one half minutes of 10 videos that contained more than 140 

minutes of pornography and introduced, in the end, excerpts of only 9 of those 

videos. See id.; United States v. Alfaro-Moncada, 607 F.3d 720, 734 (11th Cir.

2010). And the district court sought to prevent any unfair prejudice by inquiring 

during voir dire whether any prospective juror “would not be able to sit, view and 

listen to the evidence . . . and be fair to both the Government and the Defendant” 

after viewing video recordings “that depict minors in very graphic sexual 

situations.” See Dodds, 347 F.3d at 899.

Case: 12-12321 Date Filed: 05/02/2013 Page: 3 of 7 
4

Richardson argues that the district court should have “view[ed] [the videos] 

prior to trial,” but even if we assume the district court erred by not viewing the 

videos, the error was harmless in the light of the “overwhelming evidence of 

[Richardson’s] guilt,” United States v. Phaknikone, 605 F.3d 1099, 1109 (11th Cir.

2010). Testimony from agents of the Federal Bureau of Investigation established 

that an internet protocol address assigned to Richardson shared five video files of

child pornography through a peer-to-peer file sharing network in January 2011 and 

shared eight more video files of child pornography on two occasions in March 

2011; Richardson remarked spontaneously on seeing agents at his home, “You are 

here because of the kiddie porn”; and agents discovered in the master bedroom a 

computer containing 13 pornographic videos on the hard drive and a plastic bag of 

30 computer disks containing 105 video recordings of child pornography. 

Richardson admitted to downloading the video recordings from the internet and to 

sharing child pornography through the internet, see 18 U.S.C. § 2252(a)(2), 

(a)(4)(B), and the videos depicted sexually explicit conduct of young children 

engaging in various sexual acts with adults, including one video of a girl who was 

approximately ten years old being raped by an adult man.

The district court did not abuse its discretion by denying Richardson’s 

motion for a new trial. Richardson asserted that trial counsel was ineffective for

misadvising him that he faced the same penalty for both offenses, but the record 

Case: 12-12321 Date Filed: 05/02/2013 Page: 4 of 7 
5

supports the contrary conclusion of the district court. Although trial counsel 

averred in one affidavit that he misadvised Richardson that he faced the same 

penalty for both offenses, counsel averred in a second affidavit that he had 

confused Richardson’s case with another case and that pretrial notes refreshed his 

memory about informing Richardson of the correct sentence ranges. The district 

court was entitled to credit trial counsel’s testimony that he gave accurate 

sentencing information to Richardson. See United States v. McPhee, 336 F.3d 

1269, 1275 (11th Cir. 2003). Trial counsel’s testimony was consistent with 

counsel’s pretrial notes and with Richardson’s testimony that counsel “explained . . 

. that [one offense] was [subject to] a five-year minimum mandatory” and “[t]he 

other one was zero to five years.” Richardson argues that trial counsel was 

ineffective for blaming Richardson’s son and wife for the pornography and failing 

to call certain witnesses or investigate an excuse-based defense, but Richardson

raised these new arguments for the first time at his evidentiary hearing, which was 

held well beyond the 14-day period allowed to seek a new trial. See Fed. R. Crim. 

P. 33(b)(2). And the district court could not entertain Richardson’s new arguments 

as grounds for a motion to vacate because Richardson already had filed a written 

notice to appeal his convictions. See United States v. Wilson, 894 F.2d 1245, 1252 

(11th Cir. 1990).

Case: 12-12321 Date Filed: 05/02/2013 Page: 5 of 7 
6

We lack jurisdiction to review the denial of Richardson’s request for a 

downward departure. We cannot examine a discretionary decision not to depart 

downward “unless the district court incorrectly believed that it lacked authority to 

grant the departure.” United States v. Dudley, 463 F.3d 1221, 1228 (11th Cir.

2006). The district court considered Richardson’s age and his “medical issues” 

and determined that his request for a downward departure and “a sentence of 60 

months would [not] meet the requirements of 3553(a), given the very serious 

nature of the offense, the characteristics of the videos, the extended period of time 

during which [he] was involved in downloading and possessing child pornography 

and the need for the sentence imposed to provide just punishment.” The record 

establishes that the district court “understood that it could depart, but chose not to 

do so.” Dudley, 463 F.3d at 1228.

The district court did not abuse its discretion in sentencing Richardson to a 

term of imprisonment at the low end of the advisory guidelines range. The district 

court found that Richardson possessed “without doubt the most horrific child 

pornography videos that [the district court] . . . in [its] 15 years plus . . . [had] ever 

seen”; he kept the videos “on [his] computer and . . .[on] numerous CDs under his 

desk” in his bedroom; and “every time [he] download[ed] [videos] . . . [there were] 

real children who[were] being victimized over and over again.” The district court 

considered Richardson’s age and ailments and reasonably determined that the 

Case: 12-12321 Date Filed: 05/02/2013 Page: 6 of 7 
7

statutory purposes of sentencing were best served by imposing a sentence of three 

concurrent terms of 210 months for distributing child pornography to run 

concurrent with one term of 120 months for possessing child pornography. See 18 

U.S.C. § 3553(a). Richardson’s argument that his “typical downloader case” 

warranted a lesser sentence is unpersuasive in the light of the heinous nature of the 

videos he possessed, the atrocious abuses the children suffered in those videos, and 

the number of children abused in the 118 videos that he downloaded. Richardson’s 

sentence is reasonable.

We AFFIRM Richardson’s convictions and sentence.

Case: 12-12321 Date Filed: 05/02/2013 Page: 7 of 7