UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4547
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
PHILIP MICHAEL SEBOLT,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. John A. Gibney, Jr.,
District Judge. (3:12-cr-00033-JAG-1)
Submitted: January 27, 2015 Decided: February 3, 2015
Before GREGORY and WYNN, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
J. Brian Donnelly, J. BRIAN DONNELLY, P.C., Virginia Beach,
Virginia, for Appellant. Dana J. Boente, United States
Attorney, Thomas K. Johnstone IV, Special Assistant United
States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Philip Michael Sebolt appeals the life sentence
imposed following his conviction for advertising child
pornography, in violation of 18 U.S.C. § 2251(d), (e) (2012),
and following this court’s prior remand for resentencing. See
United States v. Sebolt, 554 F. App’x 200 (4th Cir. 2014) (No.
13-4093), cert. denied, __ S. Ct. __, 2015 WL 133485 (U.S. Jan.
12, 2015) (No. 14-7541). On appeal, Sebolt argues that the
district court committed both procedural and substantive
sentencing error. Finding no error, we affirm.
We review a sentence for reasonableness, applying a
deferential abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007). We must first ensure that the
district court committed no significant procedural error,
including improper calculation of the Guidelines range,
insufficient consideration of the 18 U.S.C. § 3553(a) (2012)
factors, and inadequate explanation of the sentence imposed.
United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). If we
find no procedural error, we also must consider the substantive
reasonableness of the sentence under “the totality of the
circumstances.” Gall, 552 U.S. at 51.
Where the sentencing court imposed a variant sentence,
we determine “whether the sentencing court acted reasonably both
with respect to its decision to impose such a sentence and with
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respect to the extent of the divergence from the sentencing
range.” United States v. Washington, 743 F.3d 938, 944 (4th
Cir. 2014) (internal quotation marks omitted). A substantial
departure must “be supported by a more significant justification
than a minor one.” Gall, 552 U.S. at 50. However, we “must
defer to the trial court and can reverse a sentence only if it
is unreasonable,” even if the sentence would not have been our
choice. United States v. Evans, 526 F.3d 155, 160 (4th Cir.
2008).
Sebolt first argues that the district court
procedurally erred by failing to consider a departure under U.S.
Sentencing Guidelines Manual (“USSG”) § 5G1.1 (2010). We
conclude the district court did not abuse its discretion on this
basis. The Government sought, and the court considered, a
departure as an alternative to a variance. Insofar as Sebolt
attempts to challenge the court’s decision not to depart, we
“lack the authority to review a sentencing court’s denial of a
downward departure,” as the record does not suggest that “the
court failed to understand its authority to do so.” United
States v. Hackley, 662 F.3d 671, 686 (4th Cir. 2011) (internal
quotation marks omitted).
Sebolt also argues that the court imposed a
substantively unreasonable sentence. He asserts that the court
placed improper emphasis on its assessment of his future
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dangerousness and the need to protect the public from future
crimes. He also asserts that the court improperly relied on a
letter Sebolt wrote to another inmate expressing his intention
to continue molesting children upon release from imprisonment,
given that he is expected to serve an additional fifty years
imprisonment and the fact that his statement may have been mere
exaggeration or boasting.
We find these arguments unpersuasive. The fact that
the court strongly emphasized Sebolt’s future dangerousness and
the need to protect the public as a sentencing factor does not
render the sentence unreasonable. See United States v. Pauley,
511 F.3d 468, 476 (4th Cir. 2007). Nor is the substantial
extent of the variance sufficient to render the sentence
unreasonable where the court’s thorough § 3553(a) calculus
reveals the case’s significantly aggravating circumstances. See
United States v. Hargrove, 701 F.3d 156, 163-65 (4th Cir. 2012);
United States v. Rivera-Santana, 668 F.3d 95, 106 (4th Cir.
2012).
In sentencing Sebolt, the court conducted a thorough,
individualized assessment of the offense and Sebolt’s history
and characteristics, in light of the § 3553(a) factors. The
court recognized that the serious nature of the offense — which
involved soliciting individuals, including individuals in third
world countries, to commit child molestation and produce child
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pornography — required a sentence sufficiently lengthy to
account for the seriousness of the offense and the need to deter
others from similar crimes. The court did not abuse its
discretion in concluding that Sebolt’s written statement
expressed an intention to molest children upon his release.
According the sentencing court due deference, we conclude the
court was amply justified in concluding that Sebolt’s offense
falls outside the heartland of child pornography cases and
warranted a significant upward variance to life imprisonment.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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