Case: 14-30822 Document: 00512979675 Page: 1 Date Filed: 03/24/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-30822 FILED
Summary Calendar March 24, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
CLINTON DEWAYNE SMITH,
Defendant-Appellant
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:13-CR-130
Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Clinton Dewayne Smith appeals his sentence following his guilty plea to
distribution of child pornography and receipt of child pornography in violation
of 18 U.S.C § 2252 (a)(2). Smith’s total offense level of 43 was determined by
application of U.S.S.G. § 2G2.2(a)(2) and (b). Although he had no criminal
history points under the Sentencing Guidelines, Smith’s prior criminal history
involved sexual exploitation of minors. He acknowledged that he produced the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 14-30822 Document: 00512979675 Page: 2 Date Filed: 03/24/2015
No. 14-30822
images involved in the offense of conviction, images which included
photographs of the genitalia of his disabled daughter. Smith also was
extensively involved with the online child pornography community, and he
encouraged others to produce child pornography. Based upon a total offense
level of 43 and a criminal history category of I, the guideline imprisonment
range was life imprisonment; however, because the statutory maximum
sentence was 20 years on each count, the guideline imprisonment range
became 240 months per count, or 480 months. The district court sentenced
Smith to the guideline imprisonment range.
“Appellate review for substantive reasonableness is highly deferential,
because the sentencing court is in a better position to find facts and judge their
import under the § 3553(a) factors with respect to a particular defendant.”
United States v. Hernandez, 633 F.3d 370, 375 (5th Cir. 2011) (internal
quotation marks and citation omitted). Where, as here, the sentence is within
the guidelines range, this court employs an abuse of discretion standard of
review, and the sentence is afforded a presumption of reasonableness that is
rebutted only upon a showing that the sentence does not account for a § 3553(a)
factor that should receive significant weight, gives significant weight to an
irrelevant or improper factors, or represents a clear error of judgment in
balancing the § 3553(a) factors. See United States v. Scott, 654 F.3d 552, 555
(5th Cir. 2011).
Smith’s assertion that the district court’s sentence should not be afforded
a presumption of reasonableness is without merit. The district court was
within its authority to order consecutive sentences for each of Smith’s separate
offenses, and because the sentences fell within the advisory guidelines range,
they were entitled to a presumption of reasonableness. See United States v.
Candia, 454 F.3d 468, 473-74 (5th Cir. 2006) (noting a court’s authority to
2
Case: 14-30822 Document: 00512979675 Page: 3 Date Filed: 03/24/2015
No. 14-30822
impose consecutive sentences for different offenses, even if they are imposed in
a single proceeding and that “a rebuttable presumption of reasonableness also
applies to a consecutive sentence imposed within the parameters of the
advisory federal guidelines”); see also U.S.S.G. § 5G1.2(d) (mandating
consecutive sentences where the sentence imposed on the count carrying the
highest statutory maximum is less than the total punishment). As he
concedes, Smith’s argument that a sentence imposed upon application of
§ 2G2.2 should not be afforded a presumption of reasonableness is foreclosed
by United States v. Miller, 665 F.3d 114, 119-23 (5th Cir. 2011), which held
that a sentence imposed pursuant to § 2G2.2 is entitled to a presumption of
reasonableness. See also United States v. Ellis, 720 F.3d 220, 228 (5th Cir.)
(finding similar challenge to the sentence foreclosed by Miller), cert. denied,
134 S. Ct. 681 (2013).
Smith’s challenge to the substantive reasonableness of his sentence also
is without merit. First, Smith’s characterization of the severity of his offense
is inaccurate. Smith’s “nude” pictures of his daughter included a close up
image of her genitalia. Further, the relevant conduct associated with Smith’s
offense included his heavy involvement with the child pornography
community, his encouragement of others to produce child pornography, and his
past criminal behavior, which included the physical victimization of minors.
Although he suggests that his sentence is in disparity with other similar
defendants, Smith cites no cases establishing this fact. In sum, Smith has
failed to meet his burden of showing that the district court’s presumptively
reasonable sentence was an abuse of discretion. See Scott, 654 F.3d at 555.
Accordingly, the judgment of the district court is AFFIRMED.
3