United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-2509
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United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Thomas Michael Martin, * Northern District of Iowa.
*
Appellant. * [UNPUBLISHED]
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Submitted: May 15, 2008
Filed: May 19, 2008
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Before WOLLMAN, RILEY, and GRUENDER, Circuit Judges.
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PER CURIAM.
Thomas Michael Martin challenges the within-Guidelines-range prison sentence
the district court1 imposed after he pleaded guilty to two counts of possessing and
attempting to possess child pornography after a prior conviction for a sexual-abuse
crime, in violation of 18 U.S.C. § 2252A(a)(5)(B), (b)(2). The court sentenced Martin
to consecutive sentences of 172 months on the first count and 120 months on the
second count, for a total of 292 months in prison. Martin argues that his prison
sentence is unreasonable because (1) his prior conviction for improper contact with
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
a child resulted in an unduly harsh punishment, especially given his age; (2) the court
may have believed a higher “career offender-type” sentence was warranted based
upon some of his past convictions; and (3) his total sentence on both counts of
conviction should have been limited by the 20-year statutory maximum because his
criminal conduct was “more in the nature of one ongoing wrong.”
We conclude that the district court did not abuse its discretion in sentencing
Martin at the bottom of his undisputed advisory Guidelines range. Nothing in the
record indicates the court overlooked a relevant factor, gave significant weight to an
improper factor, or committed a clear error of judgment in weighing appropriate
factors. See 18 U.S.C. § 3553(a) (factors to consider in imposing sentence); United
States v. Boss, 493 F.3d 986, 987 (8th Cir. 2007) (abuse-of-discretion standard of
review); United States v. Haack, 403 F.3d 997, 1003-04 (8th. Cir. 2005) (listing
circumstances that may constitute abuse of discretion); see also Rita v. United States,
127 S. Ct. 2456, 2462-69 (2007) (approving appellate presumption of reasonableness
for sentences within Guidelines range). Further, nothing in the record indicates the
court treated Martin as a career offender. Rather, the court properly considered
Martin’s past convictions in determining a reasonable sentence. See 18 U.S.C.
§ 3553(a)(1) (directing court to consider history and characteristics of defendant).
Finally, there is no merit to Martin’s argument that the court should have treated his
offenses as one crime for sentencing purposes. He pleaded guilty to two separate
child-pornography counts and stipulated to possessing multiple disks containing
pornographic images of children. See United States v. Planck, 493 F.3d 501, 503-05
(5th Cir. 2007) (affirming conviction on three separate counts of possessing child
pornography under § 2252A(b)(5)(B) where images were found in three different
places: desktop computer, laptop computer, and diskettes); Swepston v. United States,
289 F.2d 166, 168 (8th Cir. 1961) (right to impose consecutive sentences for separate
counts is inherent in federal courts); see also U.S.S.G. § 5G1.2(d) (if sentence
imposed on count carrying highest statutory maximum is less than total punishment,
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sentence imposed on other counts shall run consecutively to extent necessary to
produce combined sentence equal to total punishment).
Accordingly, the judgment is affirmed.
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