Credible Testimony of Dismissed “Hands‑On” Abuse May Justify Upward Variance in Child‑Pornography Sentencing under § 3553(a): United States v. Robledo (11th Cir. 2025)

Introduction

This commentary analyzes the Eleventh Circuit’s unpublished, per curiam decision in United States v. Octavio Adalberto Robledo, No. 24‑12262 (11th Cir. Nov. 5, 2025), affirming a 100‑month sentence for receipt of child pornography. The district court varied upward by 22 months from a guidelines range of 63–78 months based principally on a dismissed 2005 state allegation of hands‑on child molestation that the sentencing judge found true by a preponderance of the evidence after hearing live testimony and reviewing a contemporaneous diary entry.

On appeal, Robledo argued the sentence was procedurally and substantively unreasonable because the court relied on paragraph 40 of the presentence report (PSR)—the dismissed, unadjudicated molestation allegation—and because the court overweighted that history at the expense of mitigating factors (age, lack of criminal history, nature of the images). The Eleventh Circuit rejected both challenges, emphasizing deference to credibility determinations at sentencing and the broad discretion district courts possess to weigh 18 U.S.C. § 3553(a) factors, including reliable evidence of uncharged or dismissed conduct.

Although unpublished and therefore non‑precedential within the Eleventh Circuit, the decision meaningfully reaffirms several settled principles: (1) courts may consider dismissed conduct at sentencing if proven by a preponderance of the evidence; (2) credibility determinations at sentencing are owed heightened deference on appeal; and (3) a modest upward variance supported by reliable proof of hands‑on sexual abuse falls “within the ballpark of permissible outcomes” when measured against § 3553(a).

Case Background

• Charge and plea: Robledo pleaded guilty to one count of receiving child pornography, 18 U.S.C. §§ 2252(a)(2), (b)(1). Statutory range: 60‑month mandatory minimum to 240‑month maximum.
• Guidelines: Total offense level 26; Criminal History Category I; advisory range 63–78 months. No party objected to these calculations.
• Flight: After consenting to an FBI search in 2017, Robledo told coworkers he might leave the country because he feared discovery of more child pornography. He bought a one‑way ticket and lived in Argentina for six years until his 2023 arrest upon return to the U.S.
• PSR Paragraph 40 (Other Criminal Conduct): A 2005 Florida “Lewd and Lascivious Molestation” charge (dismissed). The PSR recounted a 12‑year‑old’s report that Robledo—dating her mother—rubbed her back, bare buttocks, and touched her breasts under her bra and shirt. The case was dismissed shortly after filing.

At sentencing, the government called the now‑adult victim, who testified consistently with paragraph 40 and authenticated a diary entry she made the day of the assault. She described the molestation as “the single worst day of [her] life,” replaying in her head for two decades. The diary note read, in substance: “Today something weird happened. [Robledo] touched my boob… He also touched my butt. BARE! I’m so scared.” Her testimony explained a minor date discrepancy as a child’s misdating. Robledo cross‑examined but offered no counter‑evidence.

The district court found the witness “truthful” and “very credible,” determined the hands‑on offense occurred by a preponderance of the evidence, and varied upward to 100 months, followed by 20 years’ supervised release. The court stated it was not punishing Robledo for the dismissed conduct but considered it under § 3553(a) to assess his history and characteristics, need for just punishment, deterrence, and protection of the public.

Summary of the Opinion

• Procedural reasonableness: Affirmed. The district court did not base the sentence on clearly erroneous facts. It permissibly credited the victim’s live testimony and diary, found the hands‑on abuse more likely than not, and considered paragraph 40 under § 3553(a). The court adequately explained the sentence.
• Substantive reasonableness: Affirmed. The 22‑month upward variance was justified by the defendant’s demonstrated interest in child pornography plus willingness to commit hands‑on abuse—distinguishing him from typical receipt‑only offenders. The sentence, well below the 240‑month statutory maximum, fell within the “ballpark of permissible outcomes.”
• Bottom line: The Eleventh Circuit saw no abuse of discretion and upheld the 100‑month term and 20‑year supervised release.

Detailed Analysis

I. Precedents and Authorities the Panel Relied Upon

• United States v. Boone, 97 F.4th 1331 (11th Cir. 2024): Frames the two‑step appellate review of sentences—procedural reasonableness first, then substantive reasonableness. The panel used Boone to cabin Robledo’s claims within the correct analytical structure and to describe what qualifies as “significant procedural error.”
• United States v. Green, 981 F.3d 945 (11th Cir. 2020): Confirms that sentencing facts need only be established by a preponderance of the evidence and may be supported by undisputed PSR statements, live evidence at the hearing, and reasonable inferences. Green directly supports the district court’s reliance on the victim’s testimony and diary to find paragraph 40 true.
• United States v. Rothenberg, 610 F.3d 621 (11th Cir. 2010); United States v. Foster, 878 F.3d 1297 (11th Cir. 2018): Provide standards of review—de novo for legal issues; clear error for fact findings; and define the demanding “definite and firm conviction” threshold for reversal of factual findings.
• United States v. Grushko, 50 F.4th 1 (11th Cir. 2022); Anderson v. City of Bessemer City, 470 U.S. 564 (1985); United States v. Maddox, 803 F.3d 1215 (11th Cir. 2015): Emphasize heightened deference to sentencing judges’ credibility evaluations. Anderson’s classic holding—that a trial judge’s credibility choice between plausible narratives is almost never clear error—anchors the panel’s refusal to second‑guess the district court’s assessment that the victim was “very credible.” Maddox supplies the “contrary to the laws of nature” or “so inconsistent or improbable” standard for when credibility determinations can be overturned, a threshold not remotely met here.
• United States v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en banc); United States v. Pugh, 515 F.3d 1179 (11th Cir. 2008): Provide the abuse‑of‑discretion framework for substantive reasonableness and the totality‑of‑the‑circumstances approach, frequently invoked in sex‑offense appeals.
• United States v. Rosales‑Bruno, 789 F.3d 1249 (11th Cir. 2015): Reinforces that (a) above‑guidelines sentences are not presumptively unreasonable; (b) district courts have broad discretion to weigh § 3553(a) factors unevenly; and (c) disagreement with the district court’s weighing does not equate to unreasonableness.
• United States v. Butler, 39 F.4th 1349 (11th Cir. 2022): Articulates the “ballpark of permissible outcomes” concept—if justified by § 3553(a), an appellate court will not substitute its judgment for the district court’s choice within a range of reasonable sentences.
• United States v. Oudomsine, 57 F.4th 1262 (11th Cir. 2023): Requires that reasons for a variance be “sufficiently compelling” relative to the degree of departure; the panel deemed the “hands‑on” conduct plus interest in child pornography a compelling rationale for the 22‑month variance.
• United States v. Hayden, 119 F.4th 832 (11th Cir. 2024): Warns against “unwarranted reliance” on certain factors, but the panel concluded reliance on the defendant’s proven history and characteristics, protection of the public, and deterrence was warranted.
• Comparative cases on child‑sex offenses and variances:
  • United States v. Hall, 965 F.3d 1281 (11th Cir. 2020): Affirms 480 months for receipt of child pornography, including a 300‑month upward variance, where there was prior hands‑on abuse.
  • United States v. Turner, 626 F.3d 566 (11th Cir. 2010): Affirms a 90‑month upward variance for receipt/possession where the defendant previously sexually abused a child.
  • United States v. Sarras, 575 F.3d 1191 (11th Cir. 2009): Upholds a 1,200‑month sentence; emphasizes courts’ latitude to impose lengthy sentences for child sex crimes given their gravity.
  These comparisons underscore that the 22‑month variance in Robledo was modest by Eleventh Circuit standards when hands‑on conduct is credibly shown.

II. The Court’s Legal Reasoning

1. Procedural Reasonableness

• Standard and burden: Sentencing facts need only be proven by a preponderance (more likely than not). The district court may rely on PSR statements, live testimony, documentary corroboration, and reasonable inferences.
• Credibility finding: The district judge expressly found the victim “truthful” and “very credible.” The panel afforded maximal deference to this live‑witness credibility assessment under Anderson, Grushko, and Maddox.
• Reliability of evidence: The victim’s detailed recollection, the contemporaneous diary entry (despite a minor date mislabeling by a child), and the absence of contradictory evidence from the defense collectively satisfied the preponderance standard.
• Use of dismissed conduct: The court drew a critical distinction: it did not sentence Robledo for the dismissed molestation, but it did consider that conduct under § 3553(a)(1) (history and characteristics) and § 3553(a)(2)(A)–(C) (just punishment, deterrence, public protection). That is permissible under long‑standing federal sentencing practice.
• Adequacy of explanation: The court articulated reasoned consideration of the offense specifics (including that some images involved very young children), the “particular type” of images (less culpable than some but still seriously harmful), the “bad picture” of his history due to the hands‑on abuse, and core § 3553(a) objectives. No procedural error occurred.

2. Substantive Reasonableness

• Weight of § 3553(a) factors: The district court reasonably assigned greater weight to public protection and deterrence given the finding of hands‑on abuse, while acknowledging mitigating points (age, no criminal history category points, and relative nature of the images). Unequal weighting is permissible.
• Justification for variance: The court’s rationale—Robledo’s demonstrated interest in child pornography plus “willingness to commit a hands‑on offense”—was sufficiently compelling for a 22‑month variance. The degree was modest compared to other Eleventh Circuit cases.
• Below statutory maximum: The sentence (100 months) is far below the 240‑month maximum, a commonly noted indicator supporting reasonableness.
• Comparative proportionality: The court’s treatment aligns with Hall and Turner: when hands‑on sexual abuse is credibly shown, even in a receipt case, upward variances are typically sustained.

III. Impact and Implications

• Sentencing practice in the Eleventh Circuit: This decision reinforces the permissibility of considering reliable evidence of dismissed/uncharged “hands‑on” conduct to justify above‑guidelines sentences in non‑production child‑pornography cases. Prosecutors may be more likely to present live victim testimony and contemporaneous writings at sentencing.
• Deference to district courts: The opinion underscores that live credibility determinations at sentencing are rarely disturbed on appeal. Defense challenges that simply re‑argue weight, without undermining reliability, are unlikely to succeed.
• Evidence quality matters: The combination of vivid, consistent testimony and contemporaneous documentation (here, a diary) can carry the preponderance burden, even decades later and despite a prior dismissal. Minor inconsistencies (e.g., misdated diary by a child) generally will not defeat credibility.
• Variance calibration: The “hands‑on”/“non‑contact” distinction significantly affects sentencing outcomes. Even when the underlying conviction is receipt, credible proof of past contact abuse can justify a meaningful upward variance under § 3553(a)(1), (2)(A)–(C).
• Limits and fairness checks: The panel emphasized that the district court did not “sentence for” the dismissed conduct—an important constraint that preserves the advisory‑guidelines framework and § 3553(a)’s individualized focus. The preponderance standard controlled here; no heightened standard was triggered by the degree of variance.
• Persuasive, not binding: Because the decision is unpublished, it is persuasive authority in the Eleventh Circuit. Still, it accurately synthesizes extant published law and will likely be cited for its clear application of deference doctrines and variance review.

Complex Concepts, Simplified

• Procedural vs. Substantive Reasonableness:
  • Procedural: Did the judge use the right process—correct guidelines, consider § 3553(a) factors, rely on reliable facts, and explain the sentence?
  • Substantive: Is the sentence, in light of all facts and § 3553(a), a reasonable choice within the range of permissible outcomes?
• Preponderance of the Evidence: More likely than not (just over 50%). This is the standard for fact‑finding at federal sentencing.
• Credibility Determination: The judge’s on‑the‑record decision to believe a witness. Appellate courts almost never overturn these unless the testimony is implausible on its face or contradicts the laws of nature.
• Upward Variance: A sentence above the advisory guideline range, justified by § 3553(a) factors, not by a guidelines calculation error.
• “Hands‑On” vs. “Non‑Contact” Conduct: Hands‑on means physical sexual abuse of a child. Non‑contact includes offenses like receipt or possession of images. Courts often treat hands‑on conduct as particularly aggravating when assessing danger and deterrence needs.
• Presentence Report (PSR): A report prepared by probation summarizing offense conduct, history, and guideline calculations. Judges may adopt its factual statements if undisputed or otherwise proven at sentencing.
• § 3553(a) Factors: Statutory considerations for sentencing, including the nature of the offense, the defendant’s history and characteristics, the need for just punishment, deterrence, public protection, and avoiding unwarranted disparities.

Practical Takeaways

• For prosecutors: Where appropriate, prepare to prove uncharged or dismissed hands‑on conduct with live testimony and corroboration. Contemporaneous writings (diaries, messages) can be powerful.
• For defense counsel: Be ready to contest reliability concretely—through evidence, not mere argument. Consider presenting counter‑witnesses, records, or other materials to undercut credibility if available. Simply invoking the fact of a prior dismissal is unlikely to carry the day.
• For district courts: Articulate (a) credibility findings, (b) the limited purpose for using other conduct (history/characteristics, deterrence, public protection), and (c) why the degree of variance is supported. A clear record will withstand appeal.
• For defendants in receipt cases: Understand that credible evidence of past hands‑on abuse—whether or not it led to conviction—can materially raise the sentence under § 3553(a).

Conclusion

United States v. Robledo reinforces the Eleventh Circuit’s settled sentencing architecture: district courts may consider reliable evidence of dismissed hands‑on abuse at sentencing under § 3553(a); fact‑finding is governed by a preponderance standard; credibility determinations based on live testimony receive extraordinary deference; and an above‑guidelines sentence supported by concrete public‑protection and deterrence rationales will be affirmed as substantively reasonable, particularly where it remains far below the statutory maximum.

While unpublished, the opinion provides a crisp, practical roadmap for how courts can—and should—handle contested “other conduct” at sentencing: hold an evidentiary hearing; make explicit credibility findings; distinguish between punishing for unadjudicated conduct and using it to inform § 3553(a); and tie any variance to specific, compelling reasons. In child‑pornography cases, credible proof of hands‑on abuse will continue to be a powerful aggravator in the Eleventh Circuit.