UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4467
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
STEPHEN MICHAEL GAYER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Andre M. Davis, District Judge. (1:07-
cr-00473-AMD-1)
Submitted: April 23, 2009 Decided: April 29, 2009
Before MICHAEL, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Ebise Bayisa, Staff
Attorney, Greenbelt, Maryland, for Appellant. Rod J. Rosenstein,
United States Attorney, Tonya Kelly Kowitz, Assistant United
States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Stephen Michael Gayer appeals the sentence imposed
after he pleaded guilty to two counts of sexually exploiting a
minor for the purpose of producing child pornography. Finding
the sentence reasonable, we affirm.
We review Gayer’s sentence under a deferential abuse
of discretion standard. See Gall v. United States, 128 S. Ct.
586, 590 (2007). The first step in this review requires the
court to ensure that the district court committed no significant
procedural error, such as improperly calculating the Guidelines
range. United States v. Osborne, 514 F.3d 377, 387 (4th Cir.),
cert. denied, 128 S. Ct. 2525 (2008). Other significant
procedural errors include “treating the Guidelines as mandatory,
failing to consider the [18 U.S.C.] § 3553(a) [2006] factors,
selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence.” Gall, 128
S. Ct. at 597. The court then considers the substantive
reasonableness of the sentence, taking into account the totality
of the circumstances. Id. This court presumes that a sentence
within a properly calculated guideline range is reasonable.
United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007).
In sentencing, the district court should first
calculate the Guidelines range and give the parties an
opportunity to argue for whatever sentence they deem
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appropriate. United States v. Pauley, 511 F.3d 468, 473 (4th
Cir. 2007). The court should then consider the § 3553(a)
factors to determine whether they support the sentence requested
by either party. Id. While a district court must consider the
statutory factors and explain its sentence, it need not
explicitly reference § 3553(a) or discuss every factor on the
record, particularly when the court imposes a sentence within a
properly calculated Guidelines range. United States v. Johnson,
445 F.3d 339, 345 (4th Cir. 2006).
Gayer received a 240 month sentence on the first count
and a consecutive sixty month sentence on the second count. He
contends that his sentence is procedurally unreasonable because
the court did not specifically address facts articulated by
counsel concerning his age, lack of risk of recidivism, and lack
of criminal record. Gayer contends that his sentence is
substantively unreasonable because the court overemphasized
general deterrence and did not take into account Gayer’s
individual factors.
Here, the district court followed the necessary
procedural steps in sentencing Gayer, properly calculating the
Guidelines range and considering that recommendation in
conjunction with the § 3553(a) factors. In light of the facts
of this case, and the district court’s sufficient articulation
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of its consideration of the § 3553(a) factors, we find the
sentence reasonable.
We therefore affirm the sentence. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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