USA vs Alejandro Ortiz

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 30, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-10246
Non-Argument Calendar
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D.C. Docket No. 2:10-cr-14051-DLG-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEJANDRO ORTIZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(August 30, 2011)
Before CARNES, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Alejandro Ortiz appeals his 96-month sentence after pleading guilty to one

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count of receiving child pornography, in violation of 18 U.S.C. § 2252(a)(2). That
sentence was the product of a downward variance from the applicable guidelines
range of 151 to 188 months imprisonment. On appeal, Ortiz argues that he should
have been sentenced instead to the statutory minimum sentence of 60 months
imprisonment. Ortiz argues that his sentence is substantively unreasonable
because, in calculating his advisory guidelines range pursuant to U.S.S.G. § 2G2.2,
the district court applied a Sentencing Guideline that (i) was not supported by
empirical data and (ii) produced a guidelines range that violated the purposes of
sentencing in accordance with 18 U.S.C. § 3553(a).
We generally review the reasonableness of a district court’s sentence under a
deferential abuse of discretion standard of review. Gall v. United States, 552 U.S.
38, 41, 128 S.Ct. 586, 591 (2007). “A district court abuses its discretion when it
(1) fails to afford consideration to relevant factors that were due significant weight,
(2) gives significant weight to an improper or irrelevant factor, or (3) commits a
clear error of judgment in considering the proper factors.” United States v. Irey,
612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (quotation marks omitted).
We examine whether a sentence is substantively reasonable in light of the
totality of the circumstances and the § 3553(a) factors. Gall, 552 U.S. at 51, 128
S.Ct. at 597. And we will vacate a defendant’s sentence “if, but only if, we are left
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with the definite and firm conviction that the district court committed a clear error
of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies
outside the range of reasonable sentences dictated by the facts of the case.” Irey,
612 F.3d at 1190.
Ortiz’s argument that his 96-month sentence is substantively unreasonable
lacks merit. The court considered the arguments of each party at the sentence
hearing, weighed the § 3553(a) factors, and determined that a downward variance
of 96 months was appropriate. That sentence, moreover, was well below Ortiz’s
advisory guidelines range of 151 to 188 months. Based on the record before us, we
cannot discern an abuse of discretion in the district court’s determination.
AFFIRMED.
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