[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

_________ _______________ No s . 11

- 15461 ; 12

- 12321

Non

- Argument Calendar

________________________ D.C. Docket No. 1:11

- cr - 20265

- JAL

- 1

UNITED STATES OF AMERICA, Plaintiff

- Appellee,

v ersus JAMES ROBERT RICHARDSON, Defendant

- Appellant.

________________________ Appeal s from the United States District Court for the Southern District of Florida

________________________ (May 2, 2013) Before: CARNES, BARKET T, and PRYOR, Circuit Judges. PER CURIAM: James Robert Richardson appeals his convictions and sentence of 210 months of imprisonment for three counts of distributin g c hild pornography, 18

Case: 12-12321 Date Filed: 05/02/2013 Page: 1 of 72 U.S.C. § 2252(a)(2), and one count of possessin g 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 reques t for a downward departure and the reasonableness of his sentence. We affirm. Richardson argues that the district court should have suppressed the video recording s 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 distric t 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 , s ee United States v. Leon , 468 U.S. 897, 922, 104 S. Ct. 3405, 3420 (1984)

. Richardson failed to challenge th e alternative ruling in his initial brief

. S ee United States v. Jernigan , 341 F.3d 1273 , 1284 n.8 ( 11 th Cir. 2003 ). The district court also did not abuse its discretion by admitting into evidence short segment s o f some of the pornographic video recordings . Richardson argues that the prejudicial effect of the explicit video s outweighed their probative value given his stipulation that the y contained child pornography, but Richardson contested the issue of his mens rea

. In recognition that a ll incriminating evidence

Case: 12-12321 Date Filed: 05/02/2013 Page: 2 of 73 is inherently prejudicial, Federal Rule of Evidence 403 exclude s 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). T he video recordings a re probative o f whether Richardson knew the videos depict ed minors engaging in sexu ally explicit conduct and intended to distribute th ose 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 1 18 videos that Richardson possessed , the government prepared segment s 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

v ideos

. See id. ; United States v. Alfaro

- Moncada , 607 F.3d 720 , 734 ( 11 th 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 74 Richardson argues th at 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 , t he error was harmless in the light of the “ overwhelming evidence of [Richardson’s] guilt ,” United States v. Phaknikone , 605 F.3d 1099, 1109 (11 th Cir

. 2010) . Testimony from agents of the Federal Bureau of Investigation established that an internet protocol address assigned to Richardson shared five video file s o f child pornography through a pee r - to

- peer file sharing network in January 2011 and shared eight m o re video files of child pornography on two occasions in March 2011 ; Richardson remar ked spontaneously on seeing a gents 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 t he hard drive and a plastic bag of 30 computer disks containing 105 video recordings of child pornography

. Richardson admitted to download ing the video recordings fro m the internet and to sharing child pornography through the internet , s ee 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 ma n . The district court did not abuse its discretion by denying Richardson’s motion for a new trial. Richardson assert ed that trial counsel was ineffective for misadvis ing him that he faced the same penalty for both offenses , but t he record

Case: 12-12321 Date Filed: 05/02/2013 Page: 4 of 75 supports the contrary conclusion of the district court

. Although trial counsel averred in one affidavit that he misadvise d Richardson that he faced the same penalty for both offenses , counsel averred in a sec ond affidavit that he had confused Richardson’s case with another case and that pretrial notes refreshed his
memory about informing Richardson of the correct sentenc e range s . T he district court was entitled to cred it trial counsel’s testimony that he g a v e accurate sentencing information to Richardson

. See United States v. McPhee , 336 F.3d 1269 , 1275 ( 11 th 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 wi fe for the pornography and failing to call certain witnesses or investigate an excuse

- based defense, but Richardson

r aise d these new arguments for the first time at his evidentiary hearing , which was held well beyond the 14

- day period allowe d to seek a new trial

. S ee 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 ( 11 th Cir

. 1990 ).

Case: 12-12321 Date Filed: 05/02/2013 Page: 5 of 76 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 la cked 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 fo r the sentence imposed to provide just punishment.” T he 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 guideline s range. The district court found that Richardson possessed “without doubt the most horrific child pornography video s 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 wh o[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 77 statutory purposes of sentencing were best served by imposing a sentence of three concurrent terms of 210 months for distributing child pornography t o r u n 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 h einous nature of the videos he possessed , the atrocious abuses the children suffered in those videos , and the number of children abuse d in the 1 18 videos that he downloaded

. Richardson’s sentence is reasonable. W e AFFIRM Richardson’s convictions and sentence

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