Eleventh Circuit Reaffirms: (1) Circumstantial Evidence Can Prove Interstate “Transportation” of Child Pornography Through Family Moves; (2) Acquitted-Conduct Sentencing Remains Constitutional Despite Guideline Amendment 826

I. Introduction

United States v. Daniel McCaffrey arises from a multi-count federal prosecution involving child sexual abuse allegations and child pornography discovered in a family home. A jury convicted Daniel R. McCaffrey of (1) transportation of child pornography, (2) possession of child pornography involving a prepubescent minor or a minor under 12, and (3) abusive sexual contact with a minor under 12, while acquitting him of aggravated sexual abuse of a minor under 12.

On appeal, McCaffrey challenged:

• Sufficiency of the evidence for the possession and transportation child pornography convictions (arguing the government proved only that a micro‑SD card was found after he moved out, without proof he knew of it or transported it).
• Due process / constitutional limits on sentencing (arguing the district court improperly relied on acquitted conduct).
• Procedural and substantive reasonableness of a large upward variance from a 121–151 month guideline range to 420 months, including an asserted failure to properly consider sentencing disparity under 18 U.S.C. § 3553(a)(6).

II. Summary of the Opinion

The Eleventh Circuit affirmed across the board.

• Sufficiency: The court held that a reasonable jury could infer McCaffrey’s knowing possession of the micro‑SD card (hidden inside a stuffed animal in the children’s room) and could also infer knowing interstate transportation based on the family’s interstate moves and the timing of when the images were added.
• Reasonableness: The court found no procedural error because the district court did consider § 3553(a)(6) and rejected McCaffrey’s comparators as not meaningfully similarly situated, relying instead on more apt comparators (including United States v. Boone and United States v. Puente). The court also held the upward variance was substantively reasonable given the nature and seriousness of the conduct.
• Acquitted conduct: The court held the constitutional challenge was foreclosed by binding precedent, citing United States v. Touray, and reiterated that Guideline Amendment 826 (effective Nov. 1, 2024) does not itself make acquitted-conduct sentencing unconstitutional.

III. Analysis

A. Precedents Cited (and How They Shaped the Decision)

1. Sufficiency of the evidence and circumstantial proof

• United States v. Grzybowicz, 747 F.3d 1296 (11th Cir. 2014)
  Role: Supplies the core sufficiency standard: de novo review; evidence viewed in the light most favorable to the government; verdict stands if any reasonable construction supports guilt beyond a reasonable doubt. The panel uses this as the framing lens for both possession and transportation.
• United States v. Bryan, 159 F.4th 1274 (11th Cir. 2025)
  Role: Confirms that elements may be proven by circumstantial evidence and inferences, but cautions that the inferences must be “reasonable” and not “mere speculation.” The panel uses Bryan both as a constraint (no speculation) and as permission (circumstantial proof is enough).
• United States v. Watts, 896 F.3d 1245 (11th Cir. 2018) (quoting United States v. Poole, 878 F.2d 1389 (11th Cir. 1989))
  Role: Reinforces the jury’s prerogative to choose among reasonable conclusions supported by the record. This supports the panel’s willingness to uphold inferences about who possessed the concealed micro‑SD card.
• United States v. Herrera, 931 F.2d 761 (11th Cir. 1991) (quoted in Watts)
  Role: Reiterates the high bar for overturning a verdict on sufficiency grounds; used to repel the defense’s “speculative jumps” argument by emphasizing that a reasonable construction is enough.

2. Sentencing review: procedural reasonableness, variances, and disparities

• United States v. Thomas, 108 F.4th 1351 (11th Cir. 2024) (citing United States v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en banc))
  Role: Establishes the abuse-of-discretion framework for reasonableness review and underscores deference to district courts, while also recognizing that major variances require significant justification (a concept further developed in Irey and Gall).
• United States v. Boone, 97 F.4th 1331 (11th Cir. 2024)
  Role: Supplies the two-step procedural/substantive reasonableness method and is also used as a comparator considered by the district court under § 3553(a)(6). The panel approves using Boone (an 840-month sentence affirmed) as a seriousness benchmark for intrafamilial abuse involving very young victims.
• United States v. Harris, 964 F.3d 986 (11th Cir. 2020) (quoting Gall v. United States, 552 U.S. 38 (2007))
  Role: Defines procedural error as including failure to consider § 3553(a). The panel relies on this to reject the argument that § 3553(a)(6) was ignored.
• United States v. Docampo, 573 F.3d 1091 (11th Cir. 2009)
  Role: Confirms § 3553(a)(6) concerns disparities among “similarly situated defendants.” The panel uses this to justify rejecting broad aggregated “sexual abuse” statistics as not tied to similarly situated comparators.
• United States v. Jayyousi, 657 F.3d 1085 (11th Cir. 2011)
  Role: Warns against comparing across materially different cases (less serious offenses, guilty pleas, different histories). The panel analogizes this principle to reject McCaffrey’s generalized comparator data.
• United States v. Puente, 267 F. App'x 863 (11th Cir. 2008)
  Role: Another comparator the district court considered. The panel approves using it in the disparity analysis because it involves aggravated sexual abuse of a young stepchild, thus more factually resonant than McCaffrey’s offered comparator set.
• United States v. Butler, 39 F.4th 1349 (11th Cir. 2022) (quoting Gall)
  Role: Confirms deference to a district court’s assessment that § 3553(a) factors justify the variance’s extent and that a court may give great weight to one factor over others. The panel uses Butler to defend the district court’s weighting of offense seriousness over mitigating personal characteristics.
• United States v. Pugh, 515 F.3d 1179 (11th Cir. 2008)
  Role: Provides the “definite and firm conviction” / “clear error of judgment” test for substantive unreasonableness. The panel uses this as the benchmark and finds no such clear error.
• United States v. Croteau, 819 F.3d 1293 (11th Cir. 2016)
  Role: Reinforces district-court discretion in weighing § 3553(a) factors; used to reject claims that certain mitigating factors were insufficiently weighted.
• United States v. Rosales-Bruno, 789 F.3d 1249 (11th Cir. 2015)
  Role: Rejects the notion that a court must benchmark against an “average offender” using generalized statistics. This supports the panel’s approval of the district court’s decision to discount McCaffrey’s broad sentencing statistics.

3. Constitutional sentencing challenge: acquitted conduct

• United States v. Hicks, 166 F.4th 933 (11th Cir. 2026)
  Role: Confirms de novo review for constitutional sentencing challenges, framing the standard of review for the acquitted-conduct claim.
• United States v. Touray, 151 F.4th 1317 (11th Cir. 2025)
  Role: Central and dispositive. The panel treats Touray as binding authority rejecting the Fifth and Sixth Amendment challenge to the consideration of acquitted conduct at sentencing.
• United States v. Archer, 531 F.3d 1347 (11th Cir. 2018)
  Role: Supplies the prior-panel-precedent rule: later panels must follow earlier binding decisions unless overruled by the Supreme Court or en banc. This forecloses McCaffrey’s constitutional argument in the panel’s view.

B. Legal Reasoning

1. Possession of child pornography (18 U.S.C. § 2252A(a)(5)(B))

The defense attack was essentially a “gap” argument: no direct evidence of purchase, access device, or proof the micro‑SD card was in the home while he lived there. The panel’s reasoning proceeds in three inferential steps, each treated as “reasonable” rather than speculative:

• Exclusive-adult inference: Only two adults lived in the home. The micro‑SD card was concealed in an unusual, purposeful location (a stuffed animal’s battery compartment) in the children’s room.
• Caregiver-opportunity inference: McCaffrey was the primary caregiver while the mother worked; the images were added when the mother was away from the home (including periods when she was not living in the home).
• Content-and-timing inference: Some images depicted abuse similar to what MF1 described, and the images ceased being added after McCaffrey left.

Under the court’s cited sufficiency framework (Grzybowicz, Watts), these inferences were enough to allow a rational jury to find knowing possession beyond a reasonable doubt.

2. Transportation of child pornography (18 U.S.C. § 2252A(a)(1))

The transportation count required proof of knowing interstate transportation/shipping. The panel acknowledges the government’s evidence was “not overwhelming,” but still sufficient. The key reasoning is that once possession is inferentially established, interstate movement can be inferentially established through:

• Temporal anchoring: Images were added beginning when the family lived in New Mexico (October 2019).
• Interstate moves: The family moved New Mexico → Mississippi (January 2020) → Florida (May 2020).
• Continuity: Images continued to be added up to the time McCaffrey left the Florida home, supporting continuity of control over the media.

The defense characterized the chain as speculative (the toy traveled; does that mean the micro‑SD card traveled; did he know it; did he know its contents). The panel’s answer is that the jury could reasonably infer the micro‑SD card existed during the moves and remained under his control because the pattern of image additions begins in New Mexico and continues through the interstate relocations.

3. Procedural reasonableness: § 3553(a)(6) disparity consideration

McCaffrey’s procedural argument hinged on § 3553(a)(6): the need to avoid unwarranted disparities. The panel rejects the claim that the district court “refused” to consider disparities. Instead, it holds:

• The court did consider § 3553(a) factors, including (a)(6).
• The court permissibly found McCaffrey’s proposed comparator statistics too broad and not tailored to “similarly situated” defendants (consistent with Docampo, Jayyousi, and Rosales-Bruno).
• The court permissibly used more fact-specific comparators, including Boone and United States v. Puente.

4. Substantive reasonableness: large upward variance to 420 months

The panel applies the usual deference: variance magnitude matters, but the district court may heavily weigh offense seriousness. The district court emphasized:

• Nature/seriousness of intrafamilial abuse of a very young child (“at a minimum” abusive sexual contact) and the additional harm reflected by possession of child pornography involving other victims.
• Protection of the public and just punishment under § 3553(a), with the panel citing Irey for the proposition that child sex crimes are “particularly egregious,” and more serious conduct warrants longer sentences.

On mitigation (military service, no criminal history, character letters), the panel relies on Butler and Croteau: the district court can assign less weight to these factors without abusing discretion.

5. Acquitted conduct at sentencing (constitutional claim) and Amendment 826

The district court found by a preponderance of the evidence that McCaffrey committed a “sexual act” supporting the acquitted aggravated sexual abuse theory, and it considered that finding at sentencing. The panel holds this is constitutionally permissible under binding circuit precedent:

• United States v. Touray forecloses the Fifth and Sixth Amendment argument.
• United States v. Archer requires adherence to prior panel precedent absent Supreme Court or en banc abrogation.

The panel also addresses the post-2024 Guidelines change: as of Nov. 1, 2024, Amendment 826 added U.S.S.G. § 1B1.3(c), providing that “relevant conduct does not include conduct for which the defendant was criminally charged and acquitted in federal court, unless such conduct also establishes, in whole or in part, the instant offense of conviction.” The panel’s key point is doctrinal: a Guideline limitation does not itself transform the practice into a constitutional violation; thus Amendment 826 does not undermine Touray.

C. Impact

1. Child pornography “transportation” can be proved without direct evidence of the physical act of crossing state lines

This decision underscores a recurring prosecution advantage in digital-contraband cases: when contraband is stored on small, concealable media (micro‑SD), “transportation” may be inferred from (i) proof of knowing possession and (ii) proof of interstate relocation during the relevant time window. The panel’s acceptance of that inference chain signals that defendants contesting the transportation element may need to attack continuity-of-control evidence (dates added, who had access, device linkage) rather than focusing solely on the absence of a “smoking gun” showing the item in a suitcase.

2. Disparity arguments must be comparator-specific, not statistical averages

The court’s treatment of § 3553(a)(6) reinforces that broad national averages (or aggregated categories like “sexual abuse”) carry limited persuasive force unless anchored to comparable offense conduct, procedural posture (trial vs. plea), and offender characteristics. Litigants should expect district courts to prefer fact-matched comparators (including their own prior sentencings) over generalized statistics.

3. Large upward variances remain sustainable when tied to offense seriousness and protection rationale

The panel’s substantive-reasonableness holding illustrates the continuing influence of Irey in child exploitation sentencing: district courts may justify major variances by emphasizing the uniquely grave harms of child sex offenses and the vulnerability of very young victims, even where the Guidelines range is substantially lower.

4. Acquitted conduct: constitutional permissibility (circuit law) vs Guidelines limitation

The decision highlights a practical bifurcation:

• Constitutional rule (Eleventh Circuit): Under Touray, considering acquitted conduct at sentencing (proved by a preponderance) does not violate the Fifth/Sixth Amendments.
• Guidelines rule (post-Amendment 826): U.S.S.G. § 1B1.3(c) limits when acquitted conduct counts as “relevant conduct” for guideline calculations, but does not categorically bar courts from considering the underlying facts for § 3553(a) purposes, nor does it constitutionalize the issue.

Future litigation is likely to focus less on pure constitutional objections (foreclosed by circuit precedent) and more on (i) proper application of § 1B1.3(c) to guideline computations, and (ii) whether reliance on acquitted conduct for variances is sufficiently explained and supported as a matter of procedural reasonableness.

IV. Complex Concepts Simplified

• Sufficiency of the evidence: An appellate court does not ask whether it personally believes the defendant is guilty. It asks whether a rational jury could find guilt beyond a reasonable doubt when the evidence is viewed in the government’s favor.
• Circumstantial evidence vs speculation: Circumstantial evidence allows inferences (e.g., timing + access + concealment). “Speculation” is an inference without a solid factual base. The panel held the inferences here were grounded in timing, access, concealment, and interstate moves.
• Procedural vs substantive reasonableness:
  • Procedural: Did the judge follow the correct steps—calculate Guidelines, consider § 3553(a), explain the sentence, and avoid clear legal error?
  • Substantive: Even if the steps were correct, is the final sentence within the range of reasonable outcomes given the facts?
• § 3553(a)(6) sentencing disparities: The goal is to avoid unwarranted differences between similarly situated defendants. Differences are often warranted when cases differ in victims’ ages, conduct severity, pleas vs trial, or other key facts.
• Acquitted conduct: “Acquitted” means the jury did not find guilt beyond a reasonable doubt on a charge. At sentencing, however, judges may (under current Eleventh Circuit law) consider facts found by a lower standard—“preponderance of the evidence”—when selecting a sentence within statutory limits.
• Preponderance of the evidence: More likely than not (>50%), a lower burden than “beyond a reasonable doubt.”
• Upward variance: A sentence above the calculated Guidelines range, justified by § 3553(a) factors (e.g., seriousness, protection of the public).

V. Conclusion

United States v. Daniel McCaffrey is a deferential affirmance that consolidates several practical points for Eleventh Circuit criminal litigation:

• Possession and interstate transportation of child pornography can be proved through a coherent chain of circumstantial evidence—especially where concealment, access, timing of downloads, and interstate moves align.
• Disparity arguments under § 3553(a)(6) must be grounded in truly comparable cases; broad statistical averages are readily discounted.
• Major upward variances may be sustained when the district court reasonably emphasizes the egregiousness of child sexual abuse and related exploitation.
• Acquitted conduct remains constitutionally usable at sentencing in the Eleventh Circuit under United States v. Touray, and Guideline Amendment 826 does not itself change that constitutional landscape—though it may affect guideline “relevant conduct” calculations in appropriate cases.