USCA11 Case: 21-12286 Date Filed: 04/01/2022 Page: 1 of 5

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 21-12286 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus VICTOR ELIAS,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the Middle District of Georgia D.C. Docket No. 7:19-cr-00037-HL-TQL-1 ____________________ USCA11 Case: 21-12286 Date Filed: 04/01/2022 Page: 2 of 5

2 Opinion of the Court 21-12286

Before WILSON, JILL PRYOR, and BRANCH, Circuit Judges. PER CURIAM: Defendant-Appellant Victor Elias appeals his 120-month sentence that he received after pleading guilty to one count of pos- session of child pornography. First, 1 he argues that the mandatory minimum sentence imposed by 18 U.S.C. § 2252(b)(2) violates the Eighth Amendment because it prevents the district court from ex- ercising its discretion in sentencing. Second, he argues that U.S.S.G. § 2G2.2(b)(4) is unconstitutional because it is vague under the Due Process Clause, of presumably the Fifth Amendment, and allows for arbitrary enforcement because it does not clarify what the terms “sadistic” or “masochistic” mean. Lastly, he argues that his sentence was substantively unreasonable. After careful review, we affirm. Turning to Elias’s first argument, we review the legality of a sentence, such as under the Eighth Amendment, de novo. United States v. Moriarty, 429 F.3d 1012, 1023 (11th Cir. 2005) (per cu- riam). The Eighth Amendment prohibits the infliction of “cruel and unusual punishments.” U.S. Const. amend. VIII. The Su- preme Court has made clear that “[s]evere, mandatory penalties may be cruel, but they are not unusual.” Harmelin v. Michigan, 501 U.S. 957, 994 (1991) (emphasis added). Accordingly,

1 We have reordered and separated Elias’s arguments for clarity. USCA11 Case: 21-12286 Date Filed: 04/01/2022 Page: 3 of 5

21-12286 Opinion of the Court 3

mandatory minimum sentences in non-capital cases are constitu- tional. See id. Here, Elias pleaded guilty to one count of possession of child pornography in violation of 18 U.S.C. § 2252(b)(2)—knowingly possessing or accessing with intent to view a visual depiction of a minor engaging in sexually explicit conduct—which carries a man- datory minimum sentence of 120 months. 18 U.S.C. § 2252(a)(4)(B). We are bound by the Supreme Court’s holding that mandatory minimum sentences in non-capital cases are con- stitutional. 2 See Harmelin, 501 U.S. at 994. Thus, Elias’s manda- tory minimum sentence of 120 months does not violate the Eighth Amendment. Turning to Elias’s second argument, we review a constitu- tional challenge to the guidelines, when appropriate, de novo. United States v. Matchett, 802 F.3d 1185, 1191 (11th Cir. 2015). But if a sentence would be the same regardless of a potential error, we have the discretion to forgo discussion of the alleged error. See United States v. Rice, 43 F.3d 601, 608 n.12 (11th Cir. 1995). Specif- ically, we have noted that, when the district court correctly im- poses a statutory mandatory minimum sentence greater than a de- fendant’s guideline range, “any error in the guidelines calculations

2 We have also found that mandatory minimums are not unconstitutional. See United States v. Farley, 607 F.3d 1294, 1345 (11th Cir. 2010) (finding that the mandatory minimum for violating 18 U.S.C. 2241(c) (aggravated sexual abuse with a child) did not violate the Eighth Amendment against cruel and unusual punishment). USCA11 Case: 21-12286 Date Filed: 04/01/2022 Page: 4 of 5

4 Opinion of the Court 21-12286

is harmless and we need not address these arguments.” United States v. Raad, 406 F.3d 1322, 1323 n.1 (11th Cir. 2005) (per curiam). Because Elias’s sentence would remain the same, the man- datory minimum of 120 months as required by statute, any possible guideline error was harmless. Thus, we do not need to address Elias’s Due Process Clause challenge. Lastly, Elias makes the conclusory assertion in his Statement of Issues that his sentence is unreasonable. We review whether the district court’s sentence is reasonable for an abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007). The appellant has the burden of proving that his “sentence is unreasonable in light of the entire record, the 18 U.S.C. § 3553(a) factors, and the substantial deference afforded sentencing courts.” United States v. Rosales- Bruno, 789 F.3d 1249, 1256 (11th Cir. 2015). However, when fashioning a reasonable sentence under § 3553(a), a court may not sentence a defendant below a mandatory minimum. United States v. Castaing-Sosa, 530 F.3d 1358, 1362 (11th Cir. 2008). Section 3553(a) “does not confer upon the district court the authority to sentence a defendant below the statutory mandatory minimum based on its consideration of the § 3553(a) factors.” Id. at 1361. The Supreme Court “made advisory the Sen- tencing Guidelines, not statutory mandatory minimums enacted by Congress,” and thus § 3553(a) does not apply. Id. at 1362 (citing United States v. Booker, 543 U.S. 220 (2005)). Thus, Elias’s sen- tence is not substantively unreasonable because the district court properly imposed the statutory minimum sentence of 120 months. USCA11 Case: 21-12286 Date Filed: 04/01/2022 Page: 5 of 5

21-12286 Opinion of the Court 5

Accordingly, we find no error in the district court sentencing Elias to the mandatory minimum of 120 months as required by stat- ute. AFFIRMED.