Eleventh Circuit reaffirms discretion to prioritize offense seriousness over national sentencing averages under § 3553(a), upholding a below‑Guidelines sentence for child‑pornography distribution

Introduction

This commentary analyzes the Eleventh Circuit’s unpublished, per curiam decision in United States v. Jonathon Fernandez‑Herak (Nos. 23‑14136 and 24‑10951, Aug. 27, 2025), affirming a 120‑month sentence for possession and distribution of child pornography imposed by the Southern District of Florida. The appeal presented a substantive‑reasonableness challenge focused on alleged unwarranted sentencing disparities under 18 U.S.C. § 3553(a)(6), invoking national average sentence data from the U.S. Sentencing Commission for non‑contact distribution offenses. The Eleventh Circuit rejected the challenge, emphasizing district courts’ broad discretion to weigh the § 3553(a) factors and to give “greater weight” to offense seriousness and specific aggravating facts, even where aggregate national averages suggest a lower mean sentence.

The ruling—though not precedential—reiterates core principles of federal sentencing review: abuse‑of‑discretion deference on substantive reasonableness, acceptance of below‑Guidelines sentences as ordinarily reasonable, and the permissibility of prioritizing offense gravity and case‑specific circumstances over generalized statistical averages. The decision also underscores a key distinction between possession and distribution in non‑production child‑sex‑offense sentencing.

Summary of the Judgment

• The district court calculated a Guidelines range of 151–188 months (offense level 34; Criminal History Category I) under U.S.S.G. § 2G2.2, including enhancements for prepubescent victims, distribution, sadistic content, use of a computer, and volume of material.
• Fernandez‑Herak sought a downward variance to 79 months based on a Sentencing Commission report reflecting average sentences for non‑contact distribution offenses; he did not object to the Guidelines calculation.
• Considering § 3553(a), the district court varied downward to 120 months (31 months below the low end) based on the defendant’s lack of criminal history, but declined to go further due to his active distribution and the particularly egregious nature of the material.
• On appeal, the Eleventh Circuit affirmed. It held the sentence substantively reasonable, explaining the district court appropriately weighed the § 3553(a) factors, permissibly assigned “greater weight” to offense seriousness, and was not required to align with national averages where aggravating facts differentiated the case.

Case Background

Law enforcement identified Fernandez‑Herak as a user distributing child pornography on a forum dedicated to such content. A warranted search recovered three phones with extensive contraband (over one thousand videos and images). The defendant pleaded guilty to one count of possession (18 U.S.C. § 2252(a)(4)(B)) and one count of distribution (18 U.S.C. § 2252(a)(2)); a receipt count was dismissed at sentencing. The district court described some of the material as among the most disturbing it had seen, highlighting extreme abuse of very young children. The court balanced the mitigating absence of prior criminal history against the aggravating distribution conduct and the nature of the content, landing on a 120‑month sentence.

Key Issue on Appeal

Whether a 120‑month, below‑Guidelines sentence is substantively unreasonable when national average data for “non‑contact distribution” sentences allegedly points to a significantly lower mean (79 months), and the defendant argues that § 3553(a)(6)’s “avoid unwarranted disparity” factor required a deeper variance.

Analysis

Precedents Cited and Their Role

• Gall v. United States, 552 U.S. 38 (2007): Establishes abuse‑of‑discretion review for sentencing and rejects rigid formulas for variances. The Fernandez‑Herak panel invoked Gall’s standard to frame the deferential review of the district court’s balancing of § 3553(a) factors.
• United States v. Butler, 39 F.4th 1349 (11th Cir. 2022): Confirms substantive reasonableness review under abuse‑of‑discretion in the Eleventh Circuit. The court cites Butler for the governing standard.
• United States v. Gonzalez, 550 F.3d 1319 (11th Cir. 2008): Reiterates that a district court must impose a substantively reasonable sentence. Supports the general reasonableness framework applied here.
• United States v. Rosales‑Bruno, 789 F.3d 1249 (11th Cir. 2015): Authorizes district courts to assign “great weight” to one § 3553(a) factor over others, reflecting broad discretion in weighing. The panel relied on Rosales‑Bruno to approve the district court’s decision to prioritize offense seriousness over national average data.
• United States v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en banc): Articulates the “definite and firm conviction” standard for reversing based on a clear error of judgment in weighing § 3553(a) factors and notes how “rarely” such reversals occur. The panel leaned on Irey’s rigorous standard to reject the defendant’s claim.
• United States v. Docampo, 573 F.3d 1091 (11th Cir. 2009): States that within‑Guidelines sentences are ordinarily expected to be reasonable; while not creating a presumption, it signals strong deference. Here, the court notes that even below‑Guidelines sentences are seldom found unreasonable, reinforcing affirmance.
• United States v. Cubero, 754 F.3d 888 (11th Cir. 2014): Affirms a 151‑month sentence for distribution/possession based on offense seriousness. Cited to show that a heavy sentence tied to serious conduct in child‑pornography cases falls within the range of reasonableness.

Legal Reasoning

The Eleventh Circuit’s reasoning proceeds along well‑established lines:

• Deference to the sentencing court’s weighing of § 3553(a) factors. The district court explicitly considered the § 3553(a) factors, acknowledged mitigating history (no prior criminal record), and still prioritized aggravating elements (active distribution and exceptionally severe content), which it was entitled to do under Rosales‑Bruno. Appellate review asks not whether a different balance was plausible, but whether the chosen balance was outside the range of reasonable sentences.
• Below‑Guidelines sentence as a strong indicator of reasonableness. The 120‑month sentence was 31 months below the low end of the advisory range (151 months). While not dispositive, this posture counsels against an appellate finding of unreasonableness, especially given Docampo’s “ordinary expectation” of reasonableness within the range and the Eleventh Circuit’s general reluctance to reverse under Irey.
• National averages do not control individualized sentencing. The defendant’s reliance on a Sentencing Commission “average” (79 months) did not compel a deeper variance. Section 3553(a)(6) targets unwarranted disparities among “similarly situated” defendants; aggregate averages—spanning varied facts, offense conduct, and enhancements—do not establish comparability. Here, the record showed aggravators distinguishing Fernandez‑Herak from the typical case encompassed in the average he cited.
• Seriousness of the offense properly justified a higher sentence than the cited average. The district court identified two salient aggravators: (i) distribution (as opposed to mere possession), and (ii) the extremely serious nature of the content. Emphasizing § 3553(a)(2)(A) “seriousness of the offense” was squarely within the court’s discretion and aligns with Cubero’s endorsement of heavy sentences for serious non‑production child‑sex offenses.
• No procedural challenge preserved or pursued. The defense did not contest the Guidelines calculation, which included standard § 2G2.2 enhancements. The appeal thus rose or fell on substantive reasonableness—an especially deferential terrain given the downward variance granted below.

Impact

While unpublished and non‑precedential, the decision is a clear, practical reminder of how the Eleventh Circuit treats “national average” arguments and the § 3553(a)(6) disparity factor in non‑production child‑sex‑offense cases:

• Statistics are informative but not dispositive. Citing national average sentences from the Sentencing Commission will not, by itself, make a below‑Guidelines sentence substantively unreasonable. Counsel must demonstrate genuine similarity to other defendants and explain why individualized facts do not warrant differentiation.
• Distribution vs. possession matters. Appellate courts are receptive to sentencing courts assigning materially greater weight to active dissemination of child pornography than to mere possession, particularly when coupled with exceptionally serious content.
• Downward variances are not guaranteed to track averages. Even when a sentencing judge grants a meaningful downward variance based on mitigating personal history, the court can reasonably stop well above a national mean where the record demonstrates substantial aggravation.
• Practical effect for appeals. Substantive‑reasonableness challenges to below‑Guidelines sentences face an uphill battle. Absent a misapprehension of the law or factors, appellate courts in the Eleventh Circuit rarely find clear error in judgment under Irey’s “definite and firm conviction” standard.

Complex Concepts Simplified

• Substantive reasonableness vs. procedural reasonableness: Procedural reasonableness asks whether the court correctly calculated the Guidelines and properly considered the § 3553(a) factors. Substantive reasonableness asks whether, in light of those factors, the final sentence falls within a reasonable range. This case concerns only the latter.
• Abuse‑of‑discretion review: A highly deferential appellate standard. The court affirms so long as the sentencing judge’s decision is within the zone of reasonable choices, even if another judge might have weighed the factors differently.
• § 3553(a) factors: Statutory sentencing considerations, including the nature and seriousness of the offense, the defendant’s history and characteristics, deterrence, protection of the public, and avoidance of unwarranted disparities among similarly situated defendants.
• “Unwarranted disparities” (§ 3553(a)(6)): The law seeks to reduce unjustified differences in sentences for similar conduct by similar offenders. This does not require courts to match national averages; instead, courts must explain individualized sentencing choices and treat truly comparable cases similarly.
• Guidelines “variance” vs. “departure”: A “variance” is a sentence outside the advisory range based on § 3553(a) factors. A “departure” is an adjustment within the Guidelines framework based on Guideline policy statements. Fernandez‑Herak received a downward variance of 31 months.
• U.S.S.G. § 2G2.2 enhancements (in brief): The child‑pornography guideline adds levels for factors common in modern offenses (e.g., prepubescent victims, use of a computer, high image counts, distribution, and sadistic content). These enhancements drove the offense level to 34 here. The defendant did not challenge the calculation.
• Unpublished, per curiam, non‑argument decision: “Per curiam” means the opinion is issued by the panel collectively. “Non‑argument calendar” indicates the case was decided without oral argument. Unpublished decisions in the Eleventh Circuit are not binding precedent but can be persuasive.

Practice Pointers

• For defense counsel: If invoking § 3553(a)(6), go beyond national averages. Present concrete comparators—cases with similar charges, enhancements, conduct (e.g., distribution vs. possession), content severity, and criminal histories—to show true similarity. Explain why offense seriousness is not meaningfully greater than the typical case within the cited average.
• For prosecutors: Document aggravating facts that distinguish the case from national averages—particularly active distribution, volume, and extreme content—then argue that § 3553(a)(2)(A) (seriousness), as well as deterrence and protection of the public, reasonably outweigh statistical means.
• For district judges: When varying, briefly but clearly explain the balance of § 3553(a) factors, including why offense seriousness warrants the ultimate term. Acknowledging and distinguishing Commission data on the record, as the court did here, fortifies the sentence on appeal.

Conclusion

United States v. Fernandez‑Herak reinforces a familiar but consequential rule in the Eleventh Circuit: district courts may place substantial weight on the seriousness of child‑pornography distribution—and the particularized facts of the offense—over generalized national average sentences when applying § 3553(a). The Eleventh Circuit’s affirmance of a significant, below‑Guidelines sentence underscores how difficult it is to overturn such sentences on substantive‑reasonableness grounds, especially where the sentencing judge addresses the statutory factors, acknowledges mitigating history, and articulates rational reasons for declining to match national averages. For future cases, this decision serves as a practical roadmap: aggregate statistics can inform the analysis, but individualized offense conduct and the court’s reasoned judgment will remain paramount.