UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4540
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
WILLIAM GEISTER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, Senior
District Judge. (2:10-cr-00127-JBF-TEM-1)
Submitted: November 10, 2011 Decided: November 22, 2011
Before MOTZ, GREGORY, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Keith L.
Kimball, Assistant Federal Public Defender, Caroline S. Platt,
Appellate Attorney, Norfolk, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Elizabeth M. Yusi, Assistant
United States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William Geister pled guilty without a plea agreement
to one count of possession of visual depictions of minors
engaging in sexually explicit conduct, in violation of
18 U.S.C.A. §§ 2252(a)(4)(B), 2256(2) (West Supp. 2011). The
district court calculated Geister’s Guidelines range at
eighty-seven to 108 months’ imprisonment under the U.S.
Sentencing Guidelines Manual (“USSG”) (2010) and sentenced
Geister to 102 months’ imprisonment. On appeal, Geister
challenges his sentence, arguing that it is substantively
unreasonable because it results from the application of USSG
§ 2G2.2--a Guideline which he asserts is “fundamentally flawed”
because it lacks an empirical basis--and is greater than
necessary to achieve the purposes of sentencing. We affirm.
We review the sentence imposed by the district court
for reasonableness under an abuse-of-discretion standard.
Gall v. United States, 552 U.S. 38, 41, 51 (2007). This review
entails appellate consideration of both the procedural and
substantive reasonableness of a sentence. Id. at 51. A
sentence imposed within the properly calculated Guidelines range
is presumed reasonable by this court. United States v.
Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010). Such a
presumption is rebutted only by showing “that the sentence is
unreasonable when measured against the [18 U.S.C.] § 3553(a)
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[(2006)] factors.” United States v. Montes-Pineda, 445 F.3d
375, 379 (4th Cir. 2006) (internal quotation marks omitted).
It is well-established that a district court may
consider policy-based objections to the Sentencing Guidelines.
Kimbrough v. United States, 552 U.S. 85, 91, 109-10 (2007); see
also United States v. Herder, 594 F.3d 352, 362-63 (4th Cir.)
(vacating sentence where district court “refused to consider a
variation from the Guidelines in light of the 67:1 ratio between
[cocaine base] and powder cocaine at Herder’s offense level”
because the court found that “‘Congress has decided that that’s
an appropriate ratio to establish’”), cert. denied, 130 S. Ct.
3440 (2010). Here, the district court acknowledged Geister’s
arguments at sentencing for a downward variance from the
Guidelines range to sixty months’ imprisonment based in part on
the proposition that USSG § 2G2.2 lacked empirical support, but
it ultimately rejected those arguments and declined to impose a
downward variance. To the extent Geister is suggesting the
district court should have adopted his policy arguments,
Kimbrough does not require that appellate courts discard “the
presumption for sentences based on non-empirically-grounded
Guidelines.” United States v. Mondragon-Santiago, 564 F.3d 357,
366 (5th Cir. 2009); see also United States v. Talamantes,
620 F.3d 901, 901 (8th Cir. 2010) (per curiam). While “district
courts certainly may disagree with the Guidelines for policy
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reasons and may adjust a sentence accordingly[,] . . . if they
do not, [appellate courts] will not second-guess their decisions
under a more lenient standard simply because the particular
Guideline [at issue] is not empirically-based.”
Mondragon-Santiago, 564 F.3d at 367.
Geister also asserts that a sentence of 102 months’
imprisonment is greater than necessary to achieve the purposes
of sentencing. Geister’s argument, in essence, asks this court
to substitute its judgment for that of the district court. Even
if this court may have weighed the § 3553(a) factors differently
if we had resolved the issue in the first instance, we will
defer to the district court’s well-reasoned decision.
See United States v. Jeffery, 631 F.3d 669, 679 (4th Cir.)
(“[D]istrict courts have extremely broad discretion when
determining the weight to be given each of the § 3553(a)
factors.”), cert. denied, ___ S. Ct. ___, 2011 WL 4532052
(Oct. 3, 2011).
Geister’s arguments on appeal fail to rebut the
presumption that his within-Guidelines sentence is substantively
reasonable. 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
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before the court and argument would not aid the decisional
process.
AFFIRMED
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