IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 2, 2009
No. 08-30487
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ANTHONY DARTEZ
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:07-CR-20009-1
Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Anthony Dartez pled guilty to possessing child pornography transported
in interstate commerce. See 18 U.S.C. § 2252A(a)(5)(B). The district court
sentenced Dartez to 120 months of imprisonment, which was the statutory
maximum term and above the range advised by the United States Sentencing
Guidelines. On appeal, he contends that his sentence was unreasonable because
the district court gave too much weight to Sentencing Guideline factors favoring
punishment and not enough weight to the factors counseling mitigation of 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 08-30487
sentence. He also contends that the district court improperly weighed his
disputing the number of pornographic images that he was charged with
possessing. He asserts that the district court mistakenly believed that he was
attempting to minimize the seriousness of his crime.
When the issue is properly preserved for appeal, we examine whether the
sentence resulted from an abuse of the trial court’s discretion. Rita v. United
States, 127 S. Ct. 2456, 2465 (2007). This review for reasonableness is a two-
part process. United States v. Rowan, 530 F.3d 379, 381 (5th Cir. 2008). The
appellate court first ensures that the district court did not commit a significant
procedural error. Id. If the sentence is procedurally sound, the appellate court
then considers its “substantive reasonableness.” Id.
The Government contends these review standards do not apply because
Dartez did not make a contemporaneous objection to the sentence imposed. If
that is so, our review would be for plain error. It is not necessary to determine
the sufficiency of Dartez’s objection at his sentencing hearing because he has
failed to show that his sentence is infirm even under an abuse of discretion
standard.
Dartez’s first argument is that the district court’s determination about the
number of images was the type of clearly erroneous fact-finding that amounts
to procedural error. See Gall v. United States, 128 S. Ct. 586, 597 (2008).
However, Dartez offered no evidence in rebuttal to the Government’s witness.
There is thus nothing to show that the district court’s factual finding was
erroneous. See United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.
2008).
Nevertheless, Dartez also argues that his persistence in his objection to
the number of images itself became a factor that the district court improperly
considered when imposing sentence. A non-Guidelines sentence may be found
unreasonable if, among other reasons, it assigns too much weight to an improper
factor. United States v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007), cert. denied,
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No. 08-30487
128 S. Ct. 2959 (2008). Dartez claims that he got a harsher sentence in part
because his counsel’s dispute about the number of images was found to be an
irritating quibble. However, nothing in the record supports that the court chose
Dartez’s sentence because of a dispute being made about the number of images.
The actual reasons articulated by the sentencing judge for the sentence
included that Dartez’s materials were graphic and featured young children. In
the district court’s view, Dartez’s act of collecting the pornography meant that
he encouraged the kind of abuse that was depicted. The court labeled Dartez’s
actions as sexual exploitation and abuse of children. Also considered was
Dartez’s history of being sexually abused as a child. One stated purpose for the
sentence was to make professional treatment available to assist his overcoming
what the court labeled as sexual dysfunction.
The district court summarized its analysis by stating that an upward
departure from the Guidelines range was warranted in light of Dartez’s
characteristics, the circumstances involving his crime, and his refusal to
recognize the full import of his actions. Dartez fails to demonstrate that the
district court committed procedural error.
Dartez also fails to demonstrate that his sentence was not substantively
reasonable. A “sentencing court may . . . conclude in a particular case that a
sentence within the Guidelines range is not lengthy enough to serve the
objectives of sentencing.” United States v. Williams, 517 F.3d 801, 809 (5th Cir.
2008). That is what the district court did in Dartez’s case. Even if an 87-month
sentence would have been reasonable, as Dartez suggests, that is an insufficient
reason for not deferring to the district court’s decision to impose the sentence
that it selected. See Gall, 128 S. Ct. at 597.
Dartez’s motion to have his counsel relieved and new counsel appointed
is DISMISSED as moot. We AFFIRM.
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