[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-11524 ELEVENTH CIRCUIT
Non-Argument Calendar DECEMBER 15, 2010
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:09-cr-00006-KD-M-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
MELISSA B. GRAY,
lllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
________________________
(December 15, 2010)
Before DUBINA, Chief Judge, TJOFLAT and FAY, Circuit Judges.
PER CURIAM:
Appellant Melissa B. Gray appeals her 96-month total sentence, imposed by
the district court after she pled guilty to one count of possessing child
pornography, in violation of 18 U.S.C. § 2252(a)(5)(B), and one count of
receiving child pornography, in violation of 18 U.S.C. § 2252(a)(2). On appeal,
Gray argues that her total sentence was substantively unreasonable because
U.S.S.G. § 2G2.2 “is not the product of empirical data, national experience, or
independent expertise and thus does not satisfy Section 3553(a)’s objectives.”
Gray relies on a Second Circuit opinion, United States v. Dorvee, 616 F.3d 174
(2d Cir. 2010), and the Supreme Court’s opinions in Kimbrough v. United States,
552 U.S. 85, 128 S. Ct. 558, 169 L. Ed. 2d 481 (2007), and Gall v. United States,
552 U.S. 38, 128 S. Ct. 586, 169 L. Ed. 2d 445 (2007) to contend that, because the
guideline is contrary to the purposes of sentencing, her sentence was substantively
unreasonable.
We review the reasonableness of a district court’s sentence under a
deferential abuse of discretion standard of review. Gall, 552 U.S. at 41, 128 S. Ct.
at 591.
To be substantively reasonable, the district court is required to impose
sentences that are “sufficient, but not greater than necessary, to comply with the
purposes” listed in 18 U.S.C. § 3553(a)(2), including the need to reflect the
seriousness of the offense, promote respect for the law, provide just punishment
for the offense, deter criminal conduct, protect the public from the defendant’s
2
future criminal conduct, and provide the defendant with needed educational or
vocational training or medical care. See 18 U.S.C. § 3553(a)(2). In imposing a
particular sentence, the court must also consider the nature and circumstances of
the offense, the history and characteristics of the defendant, the kinds of sentences
available, the applicable guideline range, the pertinent policy statements of the
Sentencing Commission, the need to avoid unwarranted sentencing disparities, and
the need to provide restitution to victims. Id. § 3553(a)(1), (3)-(7). Another
relevant factor is the relationship between the defendant’s sentence and the
applicable statutory maximum. See United States v. Gonzalez, 550 F.3d 1319,
1324 (11th Cir. 2008) (noting, as one indication of reasonableness, that a
defendant’s sentence was “well below” the applicable statutory maximum), cert.
denied, 129 S. Ct. 2848 (2009). We ordinarily expect that a sentence within the
advisory guidelines range will be reasonable. United States v. Hunt, 526 F.3d 739,
746 (11th Cir. 2008) (quoting United States v. Talley, 431 F.3d 784, 788 (11th Cir.
2005)). “[W]e are to vacate the sentence if, but only if, we are left with the
definite and firm conviction that the district court committed a clear error of
judgment in weighing the § 3553(a) factors by arriving at a sentence that lies
outside the range of reasonable sentences dictated by the facts of the case.”
United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (internal
3
quotation marks omitted).
We have previously rejected the same argument that Gray levies against her
sentences, holding that the Guidelines pertaining to child pornography offenses
adequately take into account empirical data and national experience. See United
States v. Pugh, 515 F.3d 1179, 1201 n.15 (11th Cir. 2008). Thus, Gray’s attack on
the applicable Guideline fails, and the fact that the district court relied on U.S.S.G.
§ 2G2.2 to sentence Gray did not render her sentences incompatible with the
purposes of sentencing. Because we hold Gray’s 96-month total sentence was
substantively reasonable, we affirm her sentence.
AFFIRMED.
4