USA v. Curtis Lee Fleming

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-12036
Non-Argument Calendar
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D.C. Docket No. 6:19-cr-00195-WWB-EJK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CURTIS LEE FLEMING,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(May 25, 2021)
Before WILSON, ROSENBAUM, and BRANCH, Circuit Judges.
PER CURIAM:
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Curtis Fleming appeals his 151-month sentence imposed after he pleaded
guilty to one count of receiving child pornography, in violation of 18 U.S.C.
§ 2252A(a)(2), (b)(1). He argues that his sentence violates the Eighth Amendment
because it is excessive, disproportionate, and harsh for a first-time offender like
himself who had no actual contact with any children.1
Where, as here, the defendant preserved his challenge in the district court,
we review whether a sentence violates the Eighth Amendment de novo. United
States v. Carthen, 906 F.3d 1315, 1322 (11th Cir. 2018). “The Eighth
Amendment’s prohibition of cruel and unusual punishments contains a narrow
proportionality principle that applies to noncapital sentences.” Id. (quotation
omitted); see also Ewing v. California, 538 U.S. 11, 23 (2003) (“The Eighth
Amendment does not require strict proportionality between crime and sentence.
Rather, it forbids only extreme sentences that are ‘grossly disproportionate’ to the
crime.”). When reviewing an Eighth Amendment challenge to a non-capital
sentence, we first consider “whether the sentence is grossly disproportionate to the
offense committed.” United States v. Suarez, 893 F.3d 1330, 1336 (11th Cir.
2018) (quotation omitted). The party challenging the sentence bears the burden of
1 We determined previously that the sentence-appeal waiver in Fleming’s plea agreement
was valid and enforceable. Accordingly, we dismissed Fleming’s challenge to his guidelines’
calculation—namely, that the district court erred in applying a two-level enhancement under
U.S.S.G. § 2G2.2. Fleming’s Eighth Amendment challenge, however, fell within one of the
waiver’s exceptions and was therefore not foreclosed.
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demonstrating that the sentence is disproportionate. United States v. Johnson, 451
F.3d 1239, 1243 (11th Cir. 2006). If we determine the sentence is grossly
disproportionate, “we then consider sentences imposed on others convicted of the
same crime.” Suarez, 893 F.3d at 1336 (quotation omitted). However,
“[s]uccessful Eighth Amendment challenges in non-capital cases are exceedingly
rare. Indeed, . . . we have never held that a non-capital sentence for an adult has
violated the Eighth Amendment.” Id. (quotation and citations omitted). Moreover,
“[i]n general, a sentence within the limits imposed by statute is neither excessive
nor cruel and unusual under the Eighth Amendment.” United States v. Moriarty,
429 F.3d 1012, 1024 (11th Cir. 2005) (quotation omitted).
Fleming’s argument that his 151-month sentence (or approximately 12.5
years’ imprisonment) violates the Eighth Amendment because he was a first-time
offender and did not have any personal contact with children is unpersuasive.2 The
2 Fleming’s reliance on the 2012 and 2013 Sentencing Commission reports examining
sentencing disparities among offenders in non-production child pornography cases is misplaced.
The fact that sentencing disparities among offenders in non-production cases may exist does not
tend to establish that Fleming’s within statutory limits sentence is unconstitutionally excessive or
cruel and unusual for purposes of the Eighth Amendment. Indeed, in the context of
reasonableness challenges to a defendant’s sentence, we have rejected similar arguments based
on the Sentencing Commission reports. See, e.g., United States v. Cubero, 754 F.3d 888, 900
(11th Cir. 2014); United States v. Carpenter, 803 F.3d 1224, 1235–36 (11th Cir. 2015).
To the extent that Fleming argues that evolving standards in society are moving towards
recognizing that possession of child pornography is somehow less egregious than other types of
crimes involving children and does not warrant such “harsh and draconian” punishments, we
have repeatedly rejected such a contention and continue to do so. United States v. Irey, 612 F.3d
1160, 1206 (11th Cir. 2010) (en banc) (“[C]hild sex crimes are among the most egregious and
despicable of societal and criminal offenses.” (quoting United States v. Sarras, 575 F.3d 1191,
1220 (11th Cir. 2009))); United States v. Pugh, 515 F.3d 1179, 1195–98 (11th Cir. 2008)
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statutory range for receipt of child pornography is five to twenty years’
imprisonment, 18 U.S.C. § 2252A(b)(1), and Fleming’s applicable guidelines
range was 151 to 188 months’ imprisonment. Fleming’s bottom-of-the-guidelines
sentence is well within the statutory range, which indicates that his sentence is
neither excessive nor cruel and unusual and does not violate the Eighth
Amendment. Moriarty, 429 F.3d at 1024. Further, contrary to Fleming’s
argument, we have consistently recognized that “possession of child pornography
is not a victimless crime. A child somewhere was used to produce the images
downloaded by [the defendant], in large part, because individuals like [the
defendant] exist to download the images.” United States v. Yuknavich, 419 F.3d
1302, 1310 (11th Cir. 2005). Moreover, at least “400 images, 60 videos, and 181
video clips containing child pornography” were found on Fleming’s devices, and
some of these images “depicted prepubescent children under the age of twelve,
portrayed sadistic or masochistic conduct, and involved sexual abuse or
(discussing at length the impact that child pornography has on the child victims); see also United
States v. Brown, 772 F.3d 1262, 1267 (11th Cir. 2014) (“Receiving and possessing child
pornography helps create a market for more pornography, encouraging the victimization of more
children. (alteration adopted) (quotation omitted)). And in cases involving child pornography,
we have frequently upheld much longer sentences than Fleming’s sentence. See, e.g., United
States v. Hall, 965 F.3d 1281, 1297–99 (11th Cir. 2020) (upholding as reasonable a 480-month
sentence for receipt of child pornography, which was an upward variance of 300 months from
the guidelines range); Sarras, 575 F.3d at 1196, 1220–21 (upholding a total 1,200 month
sentence for three counts of knowingly persuading a minor to engage in sexually explicit conduct
and one count of knowingly possessing child pornography); United States v. Kapordelis, 569
F.3d 1291, 1319 (11th Cir. 2009) (upholding as reasonable an upward variance sentence of 420
months for producing, receiving, and possessing child pornography).
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exploitation of a toddler.” Under these circumstances, we cannot say that
Fleming’s 151-month sentence is grossly disproportionate to the offense
committed. Accordingly, we affirm his conviction and sentence.
AFFIRMED.
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