Guidelines Commentary Error on § 2G2.2 Video “Image” Counting Is Not Plainly Reversible When Correct Frame-Based Counting Still Triggers the 600-Image Enhancement

Case: United States v. Lucio Daza Marquez (11th Cir. July 7, 2026) (per curiam) (Not for Publication)
Issue Area: Federal sentencing; U.S.S.G. § 2G2.2(b)(7)(D); deference to Guidelines commentary; plain-error review; procedural and substantive reasonableness

1. Introduction

In United States v. Lucio Daza Marquez, the Eleventh Circuit reviewed a 121-month sentence imposed after Lucio Daza Marquez pled guilty—without a plea agreement—to one count of possession and two counts of receipt of child pornography. The appeal challenged the sentence as both procedurally and substantively unreasonable.

The key procedural dispute concerned how to count “images” for the U.S.S.G. § 2G2.2(b)(7) enhancement, which increases offense level based on the number of images involved. The district court, relying on the Guidelines’ commentary, treated each video as 75 images and applied § 2G2.2(b)(7)(D) (600+ images), yielding a Guidelines range of 151–188 months. On appeal, Marquez argued the court should not have deferred to the commentary and that each video should count as one image. He also challenged certain factual findings (including credibility determinations) and argued mitigating factors made the sentence substantively unreasonable.

2. Summary of the Opinion

The Eleventh Circuit affirmed. It held:

  • Guidelines “images” counting: The district court erred by deferring to the commentary’s “75 images per video” rule, but Marquez could not obtain relief under plain-error review because a correct frame-based calculation would have produced at least as many (and likely far more) images, so the same five-level enhancement would apply.
  • Expert credibility: The district court did not err in finding the defense psychologist’s conclusions not credible where they conflicted with undisputed evidence and Marquez’s own statements.
  • Alleged misstatement about counseling: Even if the court slightly misstated Marquez’s allocution, there was no reasonable probability it affected the sentence.
  • Substantive reasonableness: A below-Guidelines sentence of 121 months was reasonable in light of the volume, content, concealment efforts, and duration (about a decade) of the conduct.

3. Analysis

3.1. Precedents Cited

The court’s decision is built on several interlocking lines of authority: (i) preservation and standards of review; (ii) the law governing deference to Guidelines commentary; (iii) sentencing factfinding and credibility; and (iv) substantive reasonableness.

A. Preservation and plain-error framework

  • United States v. Touray, 151 F.4th 1317, 1326 (11th Cir. 2025): identifies abuse-of-discretion review as the typical standard for procedural reasonableness.
  • United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014): when an issue is not adequately objected to, plain-error review applies.
  • United States v. Carroll, 886 F.3d 1347, 1351 (11th Cir. 2018): states the four-prong plain-error test used by the Eleventh Circuit.
  • Greer v. United States, 593 U.S. 503, 508 (2021): reiterates that the party asserting plain error bears the burden on all four prongs.
  • Rosales-Mireles v. United States, 585 U.S. 129, 134-35 (2018): defines the “substantial rights” requirement—reasonable probability of a different outcome but for the error.
  • United States v. Massey, 443 F.3d 814, 819 (11th Cir. 2006): a generalized objection does not preserve a specific legal claim unless it clearly informs the district court of the legal basis.
  • United States v. Wade, 458 F.3d 1273, 1277 (11th Cir. 2006): failure to object to factual allegations in the PSI results in admission of those facts for sentencing.

B. Correct Guidelines calculation and procedural reasonableness

  • United States v. Isaac, 987 F.3d 980, 990 (11th Cir. 2021): procedural reasonableness requires correct calculation of the Guidelines range, including enhancements.
  • Gall v. United States, 552 U.S. 38, 51 (2007): procedural error includes selecting a sentence based on clearly erroneous facts; also provides the overarching framework for reasonableness review.

C. Deference to Guidelines commentary; meaning of “images” in § 2G2.2(b)(7)

  • United States v. Dupree, 57 F.4th 1269, 1273-77 (11th Cir. 2023) (en banc): courts should not defer to Guidelines commentary unless the guideline text is ambiguous.
  • United States v. Kluge, 147 F.4th 1291, 1301 (11th Cir. 2025): holds § 2G2.2(b)(7) unambiguously requires counting video frames containing child pornography as “images,” rejecting the commentary’s “75 images per video” rule; instructs that the government must present evidence enabling frame-based calculation.
  • United States v. Haggerty, 107 F.4th 175, 188 (3d Cir. 2024): cited for the proposition that standard videos contain 24 frames per second (used here to illustrate that correct frame-counting would far exceed 600 images).

D. Credibility determinations at sentencing and the court’s discretion

  • United States v. Plasencia, 886 F.3d 1336, 1343 (11th Cir. 2018) (per curiam): appellate courts give substantial deference to credibility determinations at sentencing.
  • United States v. Nixon, 130 F.4th 420, 435-37 (4th Cir. 2025): discussed but distinguished; not binding and involved a district court rejecting unrebutted expert testimony “without any justification.”

E. Substantive reasonableness and deference to the district court

  • United States v. Irey, 612 F.3d 1160, 1189-90 (11th Cir. 2010) (en banc): defines substantive unreasonableness and when a sentence lies outside the range of reasonable sentences.
  • United States v. Rosales-Bruno, 789 F.3d 1249, 1256 (11th Cir. 2015): emphasizes substantial deference to the sentencing court and places the burden on the challenger.
  • United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008): while no presumption, a within-Guidelines sentence is ordinarily expected to be reasonable (used here by analogy as the court noted the sentence was below-Guidelines).
  • United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (per curiam): a sentence well below the statutory maximum is an indicator of reasonableness.

3.2. Legal Reasoning

A. The “images” enhancement: error recognized, but no plain-error relief

The court’s central procedural holding is a two-step application of post-Dupree and post-Kluge law:

  1. Error (prongs 1 and 2): In light of United States v. Kluge, the district court erred by deferring to U.S.S.G. § 2G2.2’s commentary (n.6(B)) that assigns “75 images” per video. Under United States v. Dupree, commentary cannot control when the guideline text is unambiguous; Kluge further clarifies that “images” in a video means frames containing child pornography.
  2. No effect on substantial rights (prong 3): The court held Marquez could not show a reasonable probability of a lower sentence absent the error. The record included at least one very long video (34 minutes and 29 seconds). Using a standard frame rate (24 fps, as referenced via United States v. Haggerty), the court reasoned that this single video likely contained “tens of thousands” of frames/images—far above 600—meaning § 2G2.2(b)(7)(D)’s five-level enhancement would apply even under the correct method.
What matters doctrinally: The panel treated the commentary-deference issue as a genuine “error” under current Eleventh Circuit law, but it also treated the remedy as constrained by plain-error prejudice. In other words, even a clear legal mistake about how to count images does not warrant relief absent a showing that the correct frame-count method would have reduced the Guidelines range or otherwise created a reasonable probability of a lower sentence.

B. Credibility determinations: why the district court could reject the defense expert

Marquez’s mitigation relied heavily on a psychologist’s report asserting low recidivism risk and no sexual interest in “females 6 to 13 years old or younger.” The district court found those conclusions “not credible,” emphasizing that the (undisputed) CSAM included prepubescent children (including ages three to twelve) and that Marquez had stated his preference was around age 12 and that he had viewed even younger victims.

On appeal, the Eleventh Circuit applied the deferential approach of United States v. Plasencia. The credibility rejection was not a free-floating disagreement with psychology; it was anchored in record contradictions between the expert’s premise and the offense evidence (plus Marquez’s own statements). The court also distinguished United States v. Nixon on the ground that, unlike Nixon, the district court here gave justification and cited countervailing evidence.

C. Alleged misstatement of allocution: no prejudice

The district court remarked that Marquez suggested counseling helped him learn his conduct was “wrong.” Marquez argued he only claimed therapy helped him understand the “severity” or “importance” of his crime. The Eleventh Circuit treated this as, at most, a minor imprecision and held that—given the district court’s stated reliance on the decade-long conduct, quantity/content of CSAM, and concealment—Marquez failed to show a reasonable probability of a different outcome under Rosales-Mireles v. United States.

D. Substantive reasonableness: below-Guidelines sentence upheld

Applying Gall v. United States and Eleventh Circuit substantive-reasonableness standards from United States v. Irey and United States v. Rosales-Bruno, the court held that 121 months (below the 151–188 month range and far below the statutory maximum of 60 years) was within the range of reasonable sentences. The panel accepted the district court’s weighing of aggravating factors—volume (260 videos plus images), seriousness of content, concealment/anti-forensic steps, and duration (about a decade)—over mitigating factors such as family support and employment history.

3.3. Impact

Although “NOT FOR PUBLICATION,” the opinion is practically significant because it operationalizes United States v. Kluge and frames how defendants may (and may not) obtain relief:

  • Post-Kluge sentencing litigation: District courts in the Eleventh Circuit should not use the “75 images per video” commentary shortcut. The proper approach is frame-based, requiring evidentiary support.
  • Plain-error barrier on appeal: Even where the district court uses the wrong methodology, defendants who did not preserve the issue may fail prong three if the record strongly suggests the true frame count easily exceeds 600. This creates a strategic incentive to object at sentencing and to develop the record on frame counts if the enhancement’s threshold is genuinely in doubt.
  • Evidence presentation (government and probation): The opinion reinforces Kluge’s practical instruction that the government must present evidence allowing the district court to determine the number of pornographic frames—often via duration-of-illegal-content multiplied by frame rate.
  • Expert mitigation scrutiny: The decision underscores that psychological opinions are vulnerable when inconsistent with offense facts; district courts may reject them without a competing expert if they articulate record-based reasons.

4. Complex Concepts Simplified

  • Procedural vs. substantive reasonableness: “Procedural” asks whether the court followed correct steps (proper Guidelines calculation, no clearly erroneous facts). “Substantive” asks whether the final sentence length is reasonable given the totality of circumstances and the § 3553(a) factors.
  • Guidelines commentary: The Sentencing Guidelines have binding text and separate commentary notes. After United States v. Dupree, commentary does not control if the guideline text is unambiguous.
  • Counting “images” in videos: Under United States v. Kluge, an “image” in a video means a frame that contains child pornography—not an arbitrary “75 images per video.” A minutes-long video can contain many thousands of frames.
  • Plain-error review: If you did not properly object in the district court, you must show (1) error, (2) that is plain, (3) that likely changed the outcome, and (4) that it seriously harms the fairness/integrity of the proceedings. Many appeals fail at prong (3).
  • Credibility at sentencing: Judges may evaluate whether expert opinions are trustworthy, especially when they conflict with undisputed facts in the record. Appellate courts rarely overturn such credibility calls.
  • Anti-forensic program: Software designed to hinder forensic recovery or detection of files. Courts often treat it as evidence of concealment and awareness of wrongdoing.

5. Conclusion

United States v. Lucio Daza Marquez applies the Eleventh Circuit’s post-Dupree and post-Kluge framework to child-pornography image counting under U.S.S.G. § 2G2.2(b)(7). The panel acknowledged that the district court incorrectly relied on commentary assigning “75 images” per video, but it affirmed because (under plain-error review) the defendant could not show prejudice: correct frame-based counting would still far exceed 600 images.

The decision also reinforces two durable sentencing themes: (1) district courts receive substantial deference on credibility determinations, particularly when expert opinions conflict with record evidence; and (2) below-Guidelines sentences will typically be upheld where the court reasonably weighs aggravating facts—volume, content severity, concealment, and duration—against mitigation.