No Gross Disproportionality Under Plain-Error Review: Eleventh Circuit Affirms 600-Month Sentence for Child Pornography Production and Possession

Introduction

The Eleventh Circuit’s per curiam decision in United States v. Cannella addresses a recurring constitutional argument in federal sentencing: whether an aggregate, consecutive sentence for child pornography production and possession violates the Eighth Amendment’s prohibition on cruel and unusual punishment. Angel Antonio Cannella received a total term of 600 months (50 years) after pleading guilty to two counts of production of child pornography (18 U.S.C. § 2251(a), (e)) and one count of possession of child pornography (18 U.S.C. § 2252A(a)(5)(B)). On appeal, Cannella argued for the first time that his sentence was grossly disproportionate to his conduct, rendering it unconstitutional under the Eighth Amendment.

Applying plain-error review, the Eleventh Circuit affirmed. The court held that the 600-month sentence—well within the maximum permissible 960 months if all counts were run consecutively—was not “grossly disproportionate” given the severity of the offenses, the defendant’s escalation from possession to production, the volume and nature of the material, and the distribution conduct that fuels demand for further victimization. The court emphasized there is no on-point Eleventh Circuit or Supreme Court precedent deeming similar sentences unconstitutional and reiterated that the Eleventh Circuit has never found an adult, noncapital sentence to violate the Eighth Amendment.

Summary of the Opinion

• Standard of review: Because Cannella raised the Eighth Amendment argument for the first time on appeal, the court reviewed for plain error (citing United States v. Raad and United States v. Hoffman).
• Eighth Amendment framework: The court applied the “narrow proportionality principle” that governs noncapital sentences (citing United States v. Bowers and United States v. Smith), requiring a threshold showing of “gross disproportionality.” Only if that threshold is met do courts compare intra- and inter-jurisdictional sentences (citing United States v. Johnson).
• Application: Cannella’s 600-month sentence is not grossly disproportionate. It is within the aggregate statutory maxima (960 months) and reflects severe conduct: possession of more than 1,000 child-pornography videos, including sadistic content involving infants and toddlers; distribution; and production via surreptitious recordings of minors in a church bathroom, all shortly after completing sex-offender probation.
• Precedential backdrop: The Eleventh Circuit has “never found a non-capital sentence of an adult to violate the Eighth Amendment” (Bowers). The court cited Johnson to uphold lengthy consecutive sentences in comparable contexts.
• Disposition: Affirmed.

Factual and Procedural Background

Underlying conduct

• Distribution: In May 2021, Cannella shared a video depicting the anal rape of a toddler in a KIK group dedicated to child sexual abuse material, soliciting similar videos. He also claimed to an undercover officer to have raped his three-month-old nephew at age 13.
• Production: Around the same time, he produced five videos of a boy (estimated 9–12 years old) using a church restroom, and the next month recorded a second preteen boy in similar circumstances.
• Possession and scope: A search uncovered over 1,000 videos of child pornography, including sadistic/masochistic content involving infants and toddlers, which he also distributed.
• Criminal history: He previously pleaded nolo contendere to possession of child pornography and had just finished sex-offender probation in April 2021, roughly a month before the first church-bathroom recording.

Plea, guidelines, and sentence

• Plea: Cannella pleaded guilty to two counts of production under 18 U.S.C. § 2251(a), (e) (each 15–30 years) and one count of possession under § 2252A(a)(5)(B) (up to 20 years).
• Guidelines: The revised PSR calculated a total offense level of 47 (treated as 43), Criminal History Category II, for an advisory range of life. Applying statutory caps and guideline rules on multiple counts, the advisory recommendation became 960 months (maximums run consecutively).
• Adjustments: The revised PSR added obstruction of justice (U.S.S.G. § 3C1.1) and removed acceptance of responsibility (§ 3E1.1), after the court found Cannella made false statements in support of withdrawing his plea.
• Sentence: The court imposed a downward variance to a total of 600 months (50 years): 240 months on each production count and 120 months on the possession count, all consecutive, plus ten years’ supervised release.
• Preservation: Cannella objected to substantive reasonableness but did not raise the Eighth Amendment below; his plea waiver did not bar an Eighth Amendment challenge.

Analysis

Precedents Cited and Their Role

• United States v. Raad, 406 F.3d 1322 (11th Cir. 2005): Establishes plain-error review where the defendant raises an Eighth Amendment challenge for the first time on appeal. Under plain error, relief requires a clear or obvious error affecting substantial rights.
• United States v. Hoffman, 710 F.3d 1228 (11th Cir. 2013): An error is “plain” only if it contravenes an explicit statutory command or controlling precedent from the Eleventh Circuit or the Supreme Court. This frames the near-impossibility of prevailing on a novel Eighth Amendment claim raised for the first time on appeal.
• United States v. Bowers, 811 F.3d 412 (11th Cir. 2016): Reiterates the Eighth Amendment’s “narrow proportionality principle” for noncapital sentences and records the Eleventh Circuit’s observation that it has never found an adult, noncapital sentence unconstitutional under the Eighth Amendment.
• United States v. Smith, 967 F.3d 1196 (11th Cir. 2020): Confirms there is no requirement of strict proportionality between the crime and the sentence in the noncapital context.
• United States v. Johnson, 451 F.3d 1239 (11th Cir. 2006): Upholds a 140-year sentence for production and distribution of child pornography as not disproportionate where the sentence is within statutory limits, underscoring that long consecutive sentences are permissible for serious sexual exploitation offenses.
• United States v. Flanders, 752 F.3d 1317 (11th Cir. 2014): Reflects the Eleventh Circuit’s general principle that sentences within statutory bounds are rarely deemed cruel and unusual.
• United States v. Yuknavich, 419 F.3d 1302 (11th Cir. 2005): Recognizes that consumers of child pornography contribute to victimization by creating demand—an aggravating factor in sentencing analyses.
• United States v. Pugh, 515 F.3d 1179 (11th Cir. 2008): Similarly emphasizes the demand-creation harm inherent in possession and distribution, supporting severe punishment.

Supreme Court context (not cited in the opinion but relevant background): Harmelin v. Michigan, Ewing v. California, and Lockyer v. Andrade articulate the narrowness of successful proportionality challenges to noncapital sentences, while Solem v. Helm remains the high-water mark for a successful gross-disproportionality claim. Graham v. Florida and Miller v. Alabama address juveniles and do not govern adult, noncapital cases like this one.

Legal Reasoning

1. Threshold and standard: The court first applied plain-error review because the Eighth Amendment claim was not preserved below. Under Hoffman, an error cannot be “plain” absent an explicit statutory violation or on-point Supreme Court or Eleventh Circuit precedent. This alone is a formidable barrier to relief.
2. Eighth Amendment framework: The court applied the two-step proportionality test. Step one asks whether the sentence is “grossly disproportionate” to the offense. Only if that threshold is met does the court proceed to comparative analysis of other sentences.
3. Within statutory limits: Cannella’s 600-month sentence was well within the aggregate statutory ceiling of 960 months (two counts at 30 years max each, plus 20 years). The Eleventh Circuit has repeatedly treated within-limits sentences as exceedingly unlikely to violate the Eighth Amendment.
4. Severity and escalation: The court characterized the conduct as “undeniably severe”: possession of more than 1,000 videos, sadistic content involving infants and toddlers, distribution to others, and production by filming two minors in a church bathroom. The court also highlighted escalation—Cannella “moved on and advanced” from possession to production shortly after completing sex-offender probation—supporting the district court’s finding of danger to the community.
5. Demand-creation harm: Citing Yuknavich and Pugh, the panel underscored that possession and distribution “create the demand for more,” which contributes directly to further victimization. This rationale strongly militates against any inference of gross disproportionality for severe child-exploitation sentences.
6. Absence of on-point contrary authority: The panel noted there is no Eleventh Circuit or Supreme Court authority holding similar sentences unconstitutional, and reiterated the Eleventh Circuit has never found an adult noncapital sentence to violate the Eighth Amendment (Bowers). Under plain-error review, this forecloses relief.
7. Conclusion of the proportionality analysis: Because Cannella failed to satisfy the threshold showing of gross disproportionality, the court did not proceed to comparative analysis with other sentences, and it affirmed.

Impact and Significance

Although unpublished, the decision reflects and reinforces several durable features of Eleventh Circuit sentencing jurisprudence:

• Practical bar to Eighth Amendment relief: For adult, noncapital sentences, especially in child sexual exploitation cases, the Eleventh Circuit treats successful Eighth Amendment challenges as “exceedingly rare.” When such claims are raised for the first time on appeal, plain-error review makes success still more remote.
• Aggregate, consecutive sentences: The opinion tacitly endorses the use of consecutive terms to reflect total punishment for multiple counts in child-exploitation cases, consistent with U.S.S.G. § 5G1.2(d). Even very long aggregate terms—up to de facto life—are generally sustained when within statutory maxima and supported by the facts.
• Emphasis on escalation and risk: Sentencing rationales spotlighting escalation from possession to production, recent completion of sex-offender supervision, and community danger continue to justify lengthy incarcerative terms.
• Demand-creation rationale remains central: By re-invoking Yuknavich and Pugh, the court signals continuing acceptance of the theory that consumers/distributors shoulder responsibility for perpetuating abuse, justifying severe punishment even absent hands-on abuse in the instant case.
• Preservation matters: Defendants who intend to raise proportionality arguments should do so in the district court to avoid plain-error constraints and to develop a record for any inter- and intra-jurisdictional comparisons.
• Appeal waivers: The court notes that the plea agreement’s appeal waiver did not bar the Eighth Amendment challenge here, reminding practitioners that constitutional claims may sometimes survive waivers—though this varies by agreement language.

Complex Concepts Simplified

• Narrow proportionality principle: In noncapital cases, the Eighth Amendment forbids only sentences that are “grossly disproportionate” to the offense. It does not require a close or “strict” fit between the crime and the punishment. Most within-statutory-limit sentences survive.
• Plain-error review: When a defendant does not object in the district court, an appellate court will correct only clear or obvious errors that affect substantial rights and the fairness of the proceedings. A novel constitutional claim almost never qualifies as “plain” error absent on-point controlling precedent.
• Guidelines vs. statutory maximums: The Sentencing Guidelines are advisory; statutes impose firm maximums (and sometimes minimums). When the advisory range exceeds the statutory ceiling, the statutory maximums control. For multiple counts, the guidelines often recommend stacking consecutive terms (U.S.S.G. § 5G1.2(d)) to approximate the guideline “total punishment.”
• Consecutive sentences and “aggregate” terms: Courts may impose consecutive sentences across counts to reach a total term. The Eighth Amendment analysis considers the total aggregate sentence when assessing proportionality.
• Demand-creation harm: Courts treat possession and distribution of child pornography as directly harmful because they incentivize creation of abusive material, endangering children even when the defendant did not personally produce the specific images at issue.
• Obstruction and acceptance adjustments: Lying or attempting to derail proceedings can trigger an “obstruction of justice” enhancement; a defendant normally receives a reduction for acceptance of responsibility only if he clearly acknowledges wrongdoing, which can be lost by obstructive conduct.

Conclusion

United States v. Cannella underscores the Eleventh Circuit’s settled approach to Eighth Amendment proportionality challenges in adult, noncapital cases—and particularly in child pornography prosecutions. A 600-month sentence for possession, distribution, and production, imposed against a backdrop of escalation and post-supervision offending, is not grossly disproportionate where it falls well within the aggregate statutory maxima. Coupled with plain-error review, the absence of on-point precedent condemning such sentences defeats the claim.

While unpublished, the decision reinforces a practical message: In the Eleventh Circuit, lengthy consecutive sentences for child-exploitation offenses will almost invariably withstand Eighth Amendment scrutiny when the record reflects severe conduct, risk to the community, and within-limit statutory stacking. Defendants seeking to preserve constitutional proportionality arguments must raise them in the district court; otherwise, the combination of deferential standards and entrenched precedent will foreclose relief on appeal.