UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5124
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JORGE LUIS GARCIA,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:08-cr-00478-WO-1)
Submitted: October 29, 2010 Decided: November 19, 2010
Before GREGORY, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jonathan M. Milling, MILLING LAW FIRM, LLC, Columbia, South
Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Michael A. DeFranco, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a plea agreement, Jorge Luis Garcia pled
guilty to possession of child pornography, in violation of 18
U.S.C.A. § 2252A(a)(6)(B), (b)(2) (West 2000 & Supp. 2010). The
district court sentenced Garcia to seventy-eight months’
imprisonment, the bottom of the advisory guidelines range.
Garcia appeals his sentence, arguing that the district court
erred by denying his motion for a downward variance and that he
was denied effective assistance of trial counsel. For the
reasons that follow, we affirm.
Garcia first argues that the district court abused its
discretion by denying his motion for a downward variance. We
review the district court’s sentence, “whether inside, just
outside, or significantly outside the Guidelines range,” under a
“deferential abuse-of-discretion standard.” Gall v. United
States, 552 U.S. 38, 41 (2007). In conducting this review, we
first determine whether the district court committed any
“significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range, 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.” Id. at 51. “When rendering a sentence, the district
court must make an individualized assessment based on the facts
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presented,” applying the “relevant § 3553(a) factors to the
specific circumstances of the case before it.” United States v.
Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal quotation
marks and emphasis omitted). The court must also “state in open
court the particular reasons supporting its chosen sentence” and
“set forth enough to satisfy” this court that it has “considered
the parties’ arguments and has a reasoned basis for exercising
[its] own legal decisionmaking authority.” Id. (internal
quotation marks omitted).
If the sentence is free from procedural error, we then
review it for substantive reasonableness. Gall, 552 U.S. at 51.
“Substantive reasonableness review entails taking into account
the ‘totality of the circumstances, including the extent of any
variance from the Guidelines range.’” United States v. Pauley,
511 F.3d 468, 473 (4th Cir. 2007) (quoting Gall, 552 U.S. at
51). Even if this court would have imposed a different
sentence, “this fact alone is ‘insufficient to justify reversal
of the district court.’” Id. at 474 (quoting Gall, 552 U.S. at
51).
Garcia does not dispute that his guidelines range was
properly calculated. He argues that his sentence is
substantively unreasonable because, in refusing to downwardly
vary, the court accepted the Sentencing Commission’s policy
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establishing a seventy-five-to-one video-to-still image ratio
for child pornography.
We apply an appellate presumption that a sentence
imposed within the properly calculated guidelines range is
reasonable. United States v. Go, 517 F.3d 216, 218 (4th Cir.
2008); see Rita v. United States, 551 U.S. 338, 346-56 (2007)
(upholding appellate presumption of reasonableness for within-
guidelines sentence). Garcia attempts to rebut the presumption
by challenging the video-to-still image ratio.
Under USSG § 2G2.2 cmt. n.4(b)(ii), “[e]ach video,
video-clip, movie, or similar recordings [of child pornography]
shall be considered to have 75 images. If the length of the
recording is substantially more than 5 minutes, an upward
departure may be warranted.” Garcia argues that the district
court declined to exercise its legal reasoning by blindly
relying on this provision, which he contends lacks supporting
empirical data.
The district court specifically addressed Garcia’s
arguments concerning the seventy-five-to-one ratio and, while
acknowledging its authority to disregard the policy, stated that
it did not have a disagreeement with the guidelines. Under
these circumstances, we conclude that the district court did not
abuse its discretion and that Garcia’s sentence is reasonable.
Cf. United States v. Lopez-Reyes, 589 F.3d 667, 671 (3d Cir.
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2009) (holding that, where a court has discretion to sentence
below the guidelines range if it disagrees with Sentencing
Commission policy, the court does not have to impose a below-
guidelines sentence if it does not disagree), cert. denied, 130
S. Ct. 2362 (2010); United States. v. Roberson, 517 F.3d 990,
995 (8th Cir. 2008) (same).
Garcia also asserts that his attorney provided
ineffective representation by failing to view the video images
that were found on his computer. Unless an attorney’s
ineffectiveness is conclusively apparent on the face of the
record, ineffective assistance claims are generally not
addressed on direct appeal. United States v. Benton, 523 F.3d
424, 435 (4th Cir.), cert. denied, 129 S. Ct. 490 (2008); United
States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999)
(providing standard and noting that ineffective assistance of
counsel claims generally should be raised by motion under 28
U.S.C.A. § 2255 (West Supp. 2010). The record in this case
falls short of this exacting standard.
For these reasons, we affirm Garcia’s 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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