Case: 16-30351 Document: 00513761886 Page: 1 Date Filed: 11/16/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 16-30351 November 16, 2016
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RUSSELL GUILLORY,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:15-CR-79-1
Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
Defendant-Appellant Russell Guillory pleaded guilty to possession of
child pornography. He was sentenced to a 120-month term of imprisonment
and a 15-year period of supervised release. Guillory asserts that the sentence
is substantively unreasonable because it is greater than is necessary to
accomplish the statutory sentencing goals. He points to mitigating facts and
contends that a lesser sentence would satisfy the sentencing factors of
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-30351 Document: 00513761886 Page: 2 Date Filed: 11/16/2016
No. 16-30351
promoting respect for the law, providing just punishment, and avoiding
sentencing disparities. Guillory also claims that the district court gave too
much weight to aggravating circumstances.
We review sentences for procedural error and substantive
reasonableness under an abuse of discretion standard. United States v.
Johnson, 619 F.3d 469, 471-72 (5th Cir. 2010) (citing Gall v. United States, 552
U.S. 38, 50-51 (2007)). As Guillory properly concedes, we apply a presumption
of reasonableness to within-guidelines sentences. 1 United States v. Rashad,
687 F.3d 637, 644 (5th Cir. 2012). “The presumption is rebutted only upon a
showing that the sentence does not account for a factor that should receive
significant weight, it gives significant weight to an irrelevant or improper
factor, or it represents a clear error of judgment in balancing sentencing
factors.” United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). This court
“owes deference to the district court’s determination of the appropriate
sentence based on the § 3553(a) factors and may not reverse the district court’s
ruling just because it would have determined that an alternative sentence was
appropriate.” United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008).
The district court carefully considered Guillory’s arguments in favor of a
more lenient sentence and rejected them. Guillory has not shown that its
reasons for doing so represent a clear error of judgment in balancing
sentencing factors. See Cooks, 589 F.3d at 186. The judgment is AFFIRMED.
1 Although Guillory asserts that the presumption should not be applied because
U.S.S.G. § 2G2.2 lacks an empirical basis, he concedes that this contention is foreclosed and
he states that he has raised it to preserve it for possible further review. See United States v.
Miller, 665 F.3d 114, 121 (5th Cir. 2011); United States v. Duarte, 569 F.3d 528, 529 (5th Cir.
2009).
2