Introduction

This Eleventh Circuit decision addresses when an appellate court will disturb a below‑guidelines sentence as “substantively unreasonable,” particularly where a defendant invokes national sentencing averages to argue that his sentence creates an unwarranted disparity. The defendant, Jonathon Fernandez‑Herak, pleaded guilty to possessing and distributing child pornography. He urged a 79‑month sentence, citing a United States Sentencing Commission report identifying the average sentence for non‑contact child‑pornography distribution. The district court imposed a 120‑month sentence—31 months below the low end of the advisory guidelines range—but above the cited national average—based on the seriousness and heinousness of the offense conduct and the defendant’s active distribution.

On appeal, Fernandez‑Herak contended that the district court misapplied 18 U.S.C. § 3553(a), particularly the factor directing courts to avoid unwarranted sentencing disparities. The Eleventh Circuit affirmed. The panel held that (1) district courts have broad discretion to weigh § 3553(a) factors, including attaching greater weight to offense seriousness than to statistical averages; (2) national averages do not compel a downward variance where the defendant’s conduct is more serious than the typical case reflected in those averages; and (3) overturning a below‑guidelines sentence as substantively unreasonable is rare and unwarranted on this record.

Summary of the Judgment

• Facts and offense conduct: Fernandez‑Herak distributed child‑pornography videos on a forum called “No Limit” and possessed three phones containing 1,188 videos and 1,414 images, including extremely egregious content involving very young children.
• Charges and plea: He pleaded guilty to possession (18 U.S.C. § 2252(a)(4)(B)) and distribution (18 U.S.C. § 2252(a)(2)); the government dismissed a receipt count.
• Guidelines: U.S.S.G. § 2G2.2 applied. Enhancements for very young victims, distribution, sadistic conduct/infant or toddler exploitation, use of a computer, and 600+ images yielded a total offense level of 34; with Criminal History Category I, the advisory range was 151–188 months.
• Sentence: 120 months’ imprisonment—31 months below the low end of the range—after considering § 3553(a). The court varied downward for lack of criminal history but refused to go lower due to the seriousness and distribution conduct and the extraordinarily disturbing nature of the materials.
• Appellate issue: Substantive reasonableness—whether the district court failed to properly avoid unwarranted disparities under § 3553(a)(6) in light of a 79‑month national average for non‑contact distribution cases.
• Holding: Affirmed. The district court acted within its broad discretion in weighing § 3553(a) factors, emphasizing offense seriousness (§ 3553(a)(2)(A)) over statistical averages, and imposing a substantial downward variance yet above the national average given the aggravated facts.

Analysis

Precedents Cited and Their Role

• Gall v. United States, 552 U.S. 38, 51 (2007), and United States v. Butler, 39 F.4th 1349, 1354–55 (11th Cir. 2022): Establish and reaffirm the abuse‑of‑discretion standard for substantive reasonableness review. The panel applied that deferential standard, recognizing that appellate courts do not reweigh § 3553(a) factors so long as the district court’s balancing falls within the “range of reasonable sentences.”

• United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008): Reminds that district courts must impose substantively reasonable sentences. The panel used this as a framing principle, then assessed the district court’s weighing of § 3553(a) factors.

• United States v. Rosales‑Bruno, 789 F.3d 1249, 1254, 1256 (11th Cir. 2015): Clarifies two crucial points: (1) district courts must consider all applicable § 3553(a) factors, and (2) they have “broad discretion to attach great weight to one factor over others.” The opinion leans on this discretion to uphold the district court’s decision to prioritize offense seriousness over disparity and statistical averages.

• United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc): Provides the Eleventh Circuit’s touchstone formulation for substantive reasonableness reversal—requiring a “definite and firm conviction” of a clear error in judgment. The panel invoked Irey to emphasize how rarely appellate courts disturb a sentence for substantive unreasonableness, especially where the sentence already falls below the advisory range.

• United States v. Docampo, 573 F.3d 1091, 1101 (11th Cir. 2009): Notes that within‑guidelines sentences are “ordinarily” expected to be reasonable. By analogy, a below‑guidelines sentence—like the one here—starts from an even stronger position of presumptive reasonableness in practical effect (though no formal presumption is recognized).

• United States v. Cubero, 754 F.3d 888 (11th Cir. 2014): Upholds a 151‑month sentence for possession and distribution of child pornography based on offense seriousness and a guidelines‑conformant range. The panel used Cubero to support the proposition that offense seriousness can justify substantial sentences in this category of cases.

The Court’s Legal Reasoning

1) The Guidelines Calculation and the Downward Variance

The probation office correctly applied U.S.S.G. § 2G2.2, starting with a base offense level of 22 and adding enhancements for: victims under 12, distribution, sadistic conduct/infant or toddler exploitation, use of a computer, and 600+ images. The resulting offense level 34 with Criminal History Category I produced a range of 151–188 months. The defendant did not object to these calculations.

The district court imposed a downward variance to 120 months based on the defendant’s lack of criminal history. This shows the court weighed § 3553(a)(1) (“history and characteristics of the defendant”) and granted a significant 31‑month reduction from the low end of the range—evidence of individualized consideration rather than rote application of the guidelines.

2) Application of § 3553(a) Factors

• Seriousness of the offense (§ 3553(a)(2)(A)): The district court found the materials “some of the most disturbing images” it had ever seen, involved toddlers and very young children, and included active distribution—not mere passive possession. The court attached “greater weight” to this factor, consistent with Rosales‑Bruno.
• History and characteristics of the defendant (§ 3553(a)(1)): The court explicitly credited the defendant’s lack of criminal history to justify the downward variance already given.
• Avoidance of unwarranted disparities (§ 3553(a)(6)): The court considered the Sentencing Commission’s reported national average (79 months for non‑contact distribution) but found that the defendant’s conduct was substantially more aggravated than the typical case captured by that metric. Thus, a sentence above the average but still well below the advisory range was appropriate.

3) Responding to the Disparity Argument and the Role of Commission Averages

The core appellate argument was that the district court failed to avoid a disparity because the 120‑month sentence exceeds the 79‑month national average for similarly labeled offenses. The panel rejected that argument for two reasons:

• Comparability matters: § 3553(a)(6) focuses on unwarranted disparities among defendants with “similar records” who engaged in “similar conduct.” Where the defendant distributed, possessed extraordinarily egregious content, and amassed significant quantities of materials, the district court reasonably concluded he was not meaningfully identical to the “average” non‑contact distributor reflected in Commission data.
• Discretion to prioritize other factors: Even when disparity concerns are present, district courts may lawfully attach greater weight to offense seriousness. The panel underscored that such weighting is precisely the kind of discretionary judgment appellate courts do not second‑guess absent a clear error.

4) Why No Abuse of Discretion

The panel was not left with the “definite and firm conviction” that the sentencing court erred in judgment. Quite the opposite—the district court thoroughly acknowledged the defense’s data‑driven argument, explained the basis for the variance it granted, and provided a reasoned basis for refusing to vary further. Given that the ultimate sentence undercut the advisory guidelines by more than two and a half years, and that the record substantiated the offense’s exceptional gravity, affirmance followed from the circuit’s deferential review framework.

Impact: What This Decision Means Going Forward

• Commission averages are informative, not binding: Defense reliance on national sentencing averages alone will rarely compel a further downward variance—especially where the defendant’s conduct is more aggravated than the typical case underlying those averages.
• Seriousness can be dispositive: District courts in the Eleventh Circuit may place “great weight” on § 3553(a)(2)(A) (seriousness of the offense) to sustain sentences above statistical norms yet below (or even within) the guidelines in child‑pornography distribution cases, particularly where facts are egregious.
• Substantive reasonableness challenges to below‑guidelines sentences remain uphill: The decision reiterates that reversals on substantive reasonableness grounds are “rare,” and doubly so when the sentence is already below the advisory range.
• Policy disagreements with § 2G2.2 remain insufficient for reversal on this record: Although not directly litigated here, the opinion’s reliance on seriousness and the guidelines framework sits consistently with prior Eleventh Circuit authority upholding substantial sentences in § 2G2.2 cases.
• Unpublished but persuasive: While “not for publication” and non‑precedential, this decision will likely be cited for its clear application of deference principles, especially in cases where defendants invoke Commission statistics or averages to seek deeper variances.
• Practical implications for sentencing advocacy:
  • Defense: To persuasively leverage § 3553(a)(6), demonstrate true comparability to the defendants in the cited averages (e.g., lower volume, less egregious content, no distribution, robust mitigation like treatment and verified risk reduction), and present individualized mitigation beyond statistics.
  • Prosecution: Highlight specifics that render the case more aggravated than the “average,” thereby justifying sentences above national means even when varying downward from the guidelines.

Complex Concepts Simplified

• Substantive reasonableness: Whether the length of the sentence is reasonable in light of the factors in 18 U.S.C. § 3553(a). It is distinct from “procedural reasonableness” (which concerns errors like miscalculating the guidelines).
• Abuse of discretion standard: A highly deferential review. The appellate court will not substitute its judgment for the sentencing judge’s unless it has a firm conviction the judge made a clear error in weighing the § 3553(a) factors.
• Below‑guidelines sentence: A sentence lower than the advisory range produced by the Sentencing Guidelines. Such sentences are less likely to be reversed on appeal for being too harsh.
• Variance vs. departure: A “variance” is a sentence outside the guidelines range based on § 3553(a) factors. A “departure” is a sentence outside the range based on a specific guidelines policy or provision. This case involved a variance.
• § 3553(a) factors: The statutory list a court must consider when sentencing (e.g., seriousness of the offense, history and characteristics of the defendant, deterrence, public protection, need to avoid unwarranted disparities).
• Unwarranted disparity (§ 3553(a)(6)): Focuses on avoiding unjustified differences among defendants with similar records and similar conduct. It does not mandate that sentences match national averages regardless of factual aggravators.
• U.S.S.G. § 2G2.2 enhancements: The child‑pornography guideline includes enhancements for factors like very young victims, sadistic content, use of a computer, distribution, and quantity of images—all of which can substantially increase the offense level.

Conclusion

The Eleventh Circuit’s affirmance underscores a practical and doctrinal point: district courts retain wide latitude to prioritize offense seriousness over statistical parity when crafting sentences under § 3553(a). National averages from the Sentencing Commission, while relevant, do not compel courts to disregard aggravating specifics—especially where the conduct involves active distribution, massive quantities of material, and unusually heinous content. Against the backdrop of Gall, Rosales‑Bruno, and Irey, a below‑guidelines 120‑month sentence for particularly serious child‑pornography distribution is well within the range of reasonable outcomes. The opinion thus reinforces the high bar for overturning below‑guidelines sentences as substantively unreasonable and clarifies that § 3553(a)(6) does not transform national averages into de facto caps when the facts sharply distinguish a case from the “average.”