[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13161 ELEVENTH CIRCUIT
JULY 19, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-00107-CR-3-MCR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DALE BRUNETTE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(July 19, 2010)
Before EDMONDSON, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
Dale Brunette (“Defendant”) appeals his sentence of 78 months for
possession of child pornography. Seeing no error in the district court’s sentence,
we affirm.
During an investigation of child pornography websites, Immigration and
Customs Enforcement (“ICE”) agents discovered that Defendant had made at least
five payments to a website containing child pornography. After executing a search
of Defendant’s residence and examining a laptop computer he surrendered, agents
discovered over a thousand images of child pornography. Defendant admitted all
of these facts, and plead guilty to one count of possession of child pornography.
See 18 U.S.C. § 2252A(a)(5)(B); § 2252(b)(2).
The probation officer preparing Defendant’s PSI calculated the base
offense level to be 18, with the following alterations: a two-level enhancement for
any images involving prepubescent minors or minors under the age of twelve, per
U.S.S.G. § 2G2.2(b)(2); a four-level enhancement for depictions of sadistic,
masochistic, or violent conduct, per U.S.S.G. § 2G2.2(b)(4); a two-level
enhancement because the offense involved the use of a computer, per U.S.S.G. §
2G2.2(b)(6); a five-level enhancement for involvement of more than 600 images,
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per U.S.S.G. § 2G2.2(b)(7)(D); and a three-level reduction for acceptance of
responsibility, per U.S.S.G. § 3E1.1(a)-(b). The total and adjusted offense level
was 28, with a criminal history of I. This equated to a Guidelines range of 78-97
months imprisonment.
Defendant did not object to the calculation of the Guidelines range, but
argued to the district court that a downward variance was warranted. The district
court rejected Defendant’s arguments for a sentence below the Guidelines and
sentenced Defendant to 78 months’ imprisonment.
Defendant appealed, arguing that the district court abused its discretion in
choosing his sentence. Among other things, he suggested that the 18 U.S.C.
section 3553(a) sentencing factors militated in favor of a downward variance, that
the district court erroneously considered the Guidelines to be mandatory, and that
the district court presumed that a within-Guidelines sentence was reasonable. See
Gall v. United States, 128 S. Ct. 586, 594–95 & n.3 (2007) (noting that the
Guidelines are not mandatory and that district judges may not presume that a
within-Guidelines sentence is reasonable). He also contended that the § 2G2.2
child pornography Guideline is flawed in general and as applied to him. Defendant
specifically argued that the child pornography Guideline does not reflect
Congressional intent and that district courts should disregard it as a policy matter:
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Defendant relied on Kimbrough v. United States, 128 S. Ct. 558, 575–76 (2007)
(explaining that district courts may reject the Guidelines’ crack/powder cocaine
sentencing ratio based on a policy disagreement).
Defendant’s argument that the district court abused its discretion in
following U.S.S.G. § 2G2.2 is meritless. We explained in United States v. Pugh
that the child pornography Guideline does “not exhibit the deficiencies the
Supreme Court identified in Kimbrough.” 515 F.3d 1179, 1201 & n.15 (11th Cir.
2008). And even if those deficiencies did exist, Kimbrough merely permits district
courts to change sentences; they are not required to do so. See Kimbrough, 128 S.
Ct. at 575–76. Here, the district court concluded that Congress intended to punish
child pornography offenders harshly and so declined to disagree with the
Guidelines. This determination is within the district court’s discretion and
constitutes no reversible error.
Defendant’s challenges to the procedural and substantive reasonableness of
his sentence are also without merit. The district court properly calculated the
Guidelines range, did not treat the Guidelines as mandatory, considered all of the §
3553(a) factors, did not rely on clearly erroneous facts in choosing a sentence, and
adequately explained the sentence it did choose. It has therefore satisfied all
procedural requirements for sentencing. See Gall, 128 S. Ct. at 597. And the
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sentence imposed -- at the low end of the Guidelines range -- was not substantively
unreasonable: the district court did not exhibit “unjustified reliance on any one
section 3553(a) factor” nor did it lack a reasoned evidentiary basis for its decision.
See Pugh, 515 F.3d at 1191. The sentence imposed, therefore, was not
procedurally or substantively unreasonable.
AFFIRMED.
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