Case: 09-10800 Document: 00511117479 Page: 1 Date Filed: 05/20/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 20, 2010
No. 09-10800
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ROYCE DEAN POWERS,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:09-CR-38-1
Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Royce Dean Powers pleaded guilty to one count of possession of child
pornography in violation of 18 U.S.C. § 2252(a)(4)(B). The district court imposed
a 97-month term of imprisonment to be followed by a life term of supervised
release. Powers appeals his sentence.
Sentences are reviewed for reasonableness. United States v. Mares, 402
F.3d 511, 520 (5th Cir. 2005). Pursuant to Gall v. United States, 552 U.S. 38, 51
(2007), this court must determine whether the sentence imposed is procedurally
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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No. 09-10800
sound, including whether the calculation of the advisory guidelines range is
correct, and whether the sentence is substantively reasonable. Review is for
abuse of discretion. Id. A district court’s interpretation and application of the
guidelines is reviewed de novo. See United States v. Villegas, 404 F.3d 355, 359
(5th Cir. 2005).
Powers first contends that the district court committed procedural error
by applying offense level enhancements for both distribution of child
pornography under U.S.S.G. § 2G2.2(b)(3)(F) and use of a computer under
§ 2G2.2(b)(6). Although the offense of conviction is possession, Powers used a
peer-to-peer program on his computer to obtain images of child pornography and,
also, to make the images available to others. Under the Guidelines, making the
images available to others constitutes distribution and may be accounted for as
relevant conduct. See § 2G2.2, comment. (n.1); U.S.S.G. § 1B1.3(a); cf. United
States v. Fowler, 216 F.3d 459, 461-62 (5th Cir. 2000). Multiple enhancements
are permissible except when specifically prohibited by the applicable Guideline.
See United States v. Jones, 145 F.3d 736, 737 (5th Cir. 1998); U.S.S.G. § 1B1.1,
comment. (n.4(A)). Section 2G2.2 contains no such prohibition.
Powers also challenges the substantive reasonableness of his sentence. If
the district court imposes a sentence within a properly calculated guidelines
range, as herein, we may apply a presumption of reasonableness to the sentence
on appellate review, inferring that the district court considered all the relevant
sentencing factors. Rita v. United States, 551 U.S. 338, 347 (2007); see also
United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.), cert. denied,
129 S. Ct. 328 (2008).
At sentencing, the district court had before it the presentence report (PSR)
and PSR Addendum, Powers’s objections, and the Government’s responses. The
district court adopted the calculations and findings of the PSR; heard Powers’s
expression of remorse; and considered counsel’s arguments for a lower sentence
based on Powers’s mental health issues, history of substance abuse, and medical
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No. 09-10800
problems. As evidenced by findings in the PSR, the court was further aware of
Powers’s lack of criminal history and lifetime of responsible conduct. The court,
however, did not agree that these factors merited a sentence below the
applicable guidelines range. Powers has failed to show that the district court’s
presumptively reasonable choice of a within-guidelines sentence was an abuse
of discretion. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir.
2008); United States v. Rodriguez, 523 F.3d 519, 526 (5th Cir. 2008).
The judgment of the district court is AFFIRMED.
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