NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________

No. 23-1055 _______________

UNITED STATES OF AMERICA

v.

EDWIN TORRES, a/k/a Macho Torres, Appellant _______________

On Appeal from the United States District Court for the District of New Jersey (D.C. No. 1:22-cr-00350-001) District Judge: Honorable Karen M. Williams _______________

Submitted Under Third Circuit L.A.R. 34.1(a) on December 14, 2023

Before: BIBAS, PORTER, and FISHER, Circuit Judges

(Filed: December 14, 2023) _______________

OPINION* _______________

BIBAS, Circuit Judge.

Possessing child pornography is a serious crime warranting a serious sentence; sharing

it is even worse. Edwin Torres was caught with more than a hundred child-porn videos,

* This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding precedent. three of which he shared. Some of the children shown performing sex acts were preteens;

others were as young as six to nine. He pleaded guilty to possession. The Probation Office

recommended:

• a base offense level of 18

• plus an enhancement for using a computer +2

• plus an enhancement for images involving children under 12 +2 • plus an enhancement for at least 600 images (because each video counts as +5 75 images) • plus an enhancement for distributing images +2

• plus an enhancement for images involving sadism, masochism, or violence +4

Adjusted offense level: 33

U.S.S.G. § 2G2.2(a)(1), (b)(2), (b)(3)(F), (b)(4)(A), (b)(6), (b)(7)(D) & n.6(B)(ii).

Torres did not contest the enhancements for distribution or violence. But he did dispute

the other three and sought a downward variance. The District Court agreed that the com-

puter enhancement was duplicative but kept the ones for age and quantity. So it varied the

offense level downward two levels to 31. With a criminal history category of II and a three-

level reduction for accepting responsibility, his range was 87 to 108 months. The court

sentenced him in the middle of that range, to 96 months. He now appeals, challenging only

the sentence’s substantive reasonableness. Even though it is below the advisory Guidelines

range, he claims it is too harsh. But it is not.

Our review is very deferential. We review a sentence’s substantive reasonableness for

abuse of discretion. United States v. Handerhan,

(3d Cir. 2014). We

may presume that sentences within the Guidelines range are reasonable.

at 119–20. We

2 will affirm “unless no reasonable sentencing court would have imposed the same sentence

on that particular defendant for the reasons the district court provided.” United States v.

Tomko,

(3d Cir. 2009) (en banc).

Torres criticizes the child-porn Guideline, claiming that it is not based on empirical data

or expertise and that the enhancements apply in almost every case. But a court need not

independently analyze a Guideline’s empirical or deliberative basis. United States v. Lopez-

Reyes,

(3d Cir. 2009). And the sentencing court made its own judgment,

rejecting the computer enhancement as ubiquitous but finding the age and quantity

enhancements fitting here. “[I]f a district court does not in fact have a policy disagreement

with § 2G2.2, it is not obligated to vary on that basis.” United States v. Grober,

(3d Cir. 2010). Plus, as the Government notes, the enhancements may be common

because the Government prosecutes only the worst wrongdoers.

Finally, Torres claims the District Court did not individualize his sentence, but it did. It

considered his troubled background, anxiety, depression, panic attacks, and acceptance of

responsibility. Yet it found that his mental problems were outweighed by the harm to his

victims. As it emphasized, one victim lamented that because her images have been viewed

more than 22,000 times, she may need therapy for her fear, anxiety, and panic attacks for

the rest of her life. The court also considered the other § 3553(a) factors and averted dis-

parity by rejecting the computer enhancement. Because the eight-year sentence reasonably

reflected the seriousness of the crime, the harm to victims, and other relevant factors, we

will affirm it.

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