Case: 15-30567 Document: 00513351395 Page: 1 Date Filed: 01/21/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-30567
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
January 21, 2016
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
MICHAEL S. GOLDEN,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 3:14-CR-139-1
Before STEWART, Chief Judge, and DAVIS and GRAVES, Circuit Judges.
PER CURIAM: *
Michael S. Golden appeals the 342-month sentence imposed following
his conviction for a single count of production of child pornography. He argues
that his sentence, which was within the guidelines range, was unreasonable
because this case was not a “heartland” case, and the district court should have
granted his motion for a downward departure; he maintains that his offense
conduct did not involve sexual acts but rather photographs of naked children.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 15-30567
Golden argues that that U.S.S.G. § 2G1.2, the guideline for production of child
pornography, does not take into consideration the offense conduct and groups
together disparate acts. He also suggests that his sentence violates the Eighth
Amendment.
Ordinarily, this court reviews a district court’s sentencing decision for
reasonableness, under the abuse-of-discretion standard. Gall v. United States,
552 U.S. 38, 50-51 (2007). To the extent that Golden’s instant arguments vary
from those that he raised in the district court or are raised for the first time on
appeal, those claims would be reviewed for plain error. See United States v.
Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). However, because Golden cannot
show that the district court committed error, plain or otherwise, we need not
resolve the applicable standard of review. See United States v. Rodriguez, 523
F.3d 519, 525 (5th Cir. 2008).
To the extent that Golden argues that the district court wrongly denied
his motion for a downward departure, we lack jurisdiction to review the claim
because there is no indication that the district court believed mistakenly that
it lacked the authority to depart. See United States v. Sam, 467 F.3d 857, 861
(5th Cir. 2006). The record otherwise supports that the district court made an
individualized sentencing decision that reflects consideration of, and reference
to, the § 3553(a) sentencing factors. See Gall, 552 U.S. at 49-51. The district
court’s sentencing decision is entitled to deference, and we may not reweigh
the § 3553(a) factors or reverse a sentence even if we reasonably could conclude
that a different sentence is proper. Id. at 51-52. Golden’s disagreement with
his sentence does not rebut the presumption of reasonableness that attaches
to his within-guidelines sentence. See United States v. Ruiz, 621 F.3d 390, 398
(5th Cir. 2010). He has not alleged or shown that his sentence fails to account
for a factor that should receive significant weight, gives significant weight to
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No. 15-30567
an irrelevant or improper factor, or represents a clear error of judgment in
balancing sentencing factors. See United States v. Cooks, 589 F.3d 173, 186
(5th Cir. 2009).
Also, to the extent that Golden implies that his sentence is unreasonable
because § 2G2.1(a) imposes the same punishment on defendants regardless of
whether their offense conduct involves sexual contact with a child, his claim is
unavailing. While Golden maintains that his conduct did not conform to the
purported norm for an offense under § 2G2.1 because it did not involve a sexual
act with children, the record belies his contention; the record supports that his
offense conduct involved the commission of a sexual act or sexual contact with
children (i.e., Golden molested two of his grandchildren with a buzz toy). In
any event, his argument is effectively foreclosed by United States v. Miller, 665
F.3d 114, 121 (5th Cir. 2011). Moreover, Golden’s sentence, which was within
the advisory guidelines range, was not constitutionally disproportionate and,
therefore, does not constitute a violation of his Eighth Amendment rights. See
United States v. Cardenas-Alvarez, 987 F.2d 1129, 1133-34 (5th Cir. 1993).
The judgment of the district court is therefore AFFIRMED.
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