United States v. Geiner

F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
August 20, 2007
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

U N ITED STA TES O F A M ER ICA,

Plaintiff - Appellee,

v. No. 06-8055

ROBERT GEINER,

Defendant - Appellant.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF W YOM ING
(D . C t. No. 05-CR-63-W FD)

Loretta R. Green, Assistant Federal Public Defender (Raymond P. M oore, Federal
Public D efender, with her on the briefs), Office of the Federal Public D efender,
Cheyenne, W yoming, appearing for D efendant-Appellant.

Stuart S. Healy, III, Assistant United States Attorney (M atthew H. M ead, United
States Attorney, with him on the brief), Office of the United States Attorney,
Cheyenne, W yoming, appearing for Plaintiff-Appellee.

Before TA CH A, Chief Circuit Judge, M U RPH Y, Circuit Judge, and
L UN G ST RU M , * District Judge.

TA CH A, Chief Circuit Judge.

*
The Honorable John W . Lungstrum, Chief Judge, United States District
Court for the District of Kansas, sitting by designation.
 Defendant-Appellant Robert Geiner appeals his sentence of 210 months’

imprisonment for attempted interstate transportation of child pornography and

possession of child pornography. W e exercise jurisdiction pursuant to 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742(a)(1) and affirm.

I. BACKGROUND

M r. Geiner was charged with attempted interstate transportation of child

pornography (count one), in violation of 18 U.S.C. § 2252A(a)(2)(A) & (b)(1),

and possession of child pornography (count two), in violation of 18 U.S.C.

§ 2252A(a)(5)(B) & (b)(2). He pleaded guilty to both counts, but did so without

entering into a plea agreement. Because the proposed plea agreement required

that M r. Geiner stipulate to the application of certain enhancements under the

United States Sentencing Guidelines (U.S.S.G. or Guidelines), M r. Geiner

rejected the agreement, electing to raise his arguments regarding the proper

application of the Guidelines before the District Court. At his change of plea

hearing, M r. Geiner admitted that he knowingly possessed and attempted to

distribute computer files containing child pornography by enabling the file-

sharing feature on a computer software program called “bearshare,” which he

installed on his home computer. He also admitted that he obtained computer files

containing child pornography by downloading them from other people using

bearshare.

-2-
 The U.S. Probation Office issued a Presentence Investigation Report (PSR)

calculating an imprisonment range under the Guidelines of 210 to 262 months for

count one and 210 to 240 months for count 2 based on a total offense level of 37

and a Criminal History Category of I. The total offense level included a five-

level enhancement under U.S.S.G. § 2G2.2(b)(3)(B) for committing an offense

involving “distribution for the receipt, or expectation of receipt, of a thing of

value, but not for pecuniary gain.” As the PSR addendum reflects, M r. Geiner

objected to the application of this enhancement, arguing that it should not apply

because he did not barter or agree with another for the exchange of a “thing of

value” when he shared and downloaded files containing child pornography.

M r. Geiner noted this same objection to the PSR at his sentencing hearing,

arguing that, instead of applying the five-level enhancement, the court should

apply the general two-level enhancement under U.S.S.G. § 2G2.2(b)(3)(F) for

distribution that does not fall under one of the other § 2G2.2(b)(3) subsections.

In response, the Government introduced the testimony of the special agent who

investigated and interviewed M r. Geiner. 1 The agent testified that M r. Geiner had

been using a software program called bearshare, a peer-to-peer file-sharing

program that is available on the Gnutella File-Sharing Network. The agent

explained that M r. Geiner originally used this program to download images from

1
M r. Geiner stipulated to the agent’s expertise in the area of Internet crime
investigation, specifically investigations involving child exploitation.

-3-
others without enabling the sharing feature of the software program to allow

others to access and download his computer files. Later, however, M r. Geiner

changed the software settings by clicking a box on the software’s preferences

page to facilitate the sharing of certain computer files with others. 2 According to

the agent, M r. Geiner had learned that he could download files from others at a

faster speed if he permitted others to obtain files from him. As the agent

explained, because M r. Geiner permitted the sharing of his files, he became a

“priority trader” when he sought files from other network users. A s a priority

trader, M r. Geiner had the benefit of a faster downloading speed, which gave him

the ability to obtain files containing child pornography more easily and

efficiently. After hearing from both parties, the District Court decided that the

enhancement applied to M r. Geiner’s case because he had made files containing

child pornography available to the public in return for the ability to obtain child

pornography at a faster speed.

After the court addressed M r. Geiner’s objections to the PSR, M r. Geiner

indicated that he wished to call witnesses to testify in his behalf. At this point,

the District Court notified the parties that it intended to impose a sentence within

the Guidelines, even though the court understood that the Guidelines are not

mandatory and it may exercise its discretion to impose a sentence that meets the

2
The software makes available in a separate folder only those files that the
user has designated for sharing.

-4-
objectives of the sentencing factors delineated in 18 U.S.C. § 3553(a). The court

noted that the Guidelines have “particular value to sentencing judges in this kind

of case” and that it should not ignore the Guidelines when a Guidelines sentence

meets the purposes of the factors in § 3553(a). In addition, the court explained

that, because it intended to apply a Guidelines sentence, it would not consider

“impermissible bases for departure.” In response, M r. Geiner’s counsel indicated

that she understood the court’s intentions and that all of the testimony she

planned to present was related to a ground for departure under the G uidelines,

specifically diminished capacity under U .S.S.G. § 5K2.13.

After hearing M r. Geiner’s testimony and counsels’ arguments concerning a

departure based on diminished capacity, the court accepted the PSR’s total

offense level of 37 and decided to sentence M r. Geiner within the Guidelines

range contained in the PSR. Before imposing the sentence, the court asked the

parties if they wished to make any additional objections. Neither party objected.

The court subsequently sentenced M r. Geiner to 210 months’ imprisonment, the

bottom end of the applicable range under the Guidelines.

On appeal, M r. Geiner challenges his sentence on two grounds. He argues

that the D istrict C ourt erred in applying the enhancement under U.S.S.G.

§ 2G2.2(b)(3)(B) and that his sentence is both unreasonable and unconstitutional

because the court did not consider the § 3553(a) factors.

II. D ISC USSIO N

-5-
 W e will set aside M r. Geiner’s sentence only if it is procedurally or

substantively unreasonable in light of the statutory factors contained in 18 U.S.C.

§ 3553(a). See United States v. Hildreth, 485 F.3d 1120, 1127 (10th Cir. 2007).

A procedurally reasonable sentence reflects the sentencing court’s calculation of

the applicable advisory Guidelines range and its application of the § 3553(a)

factors. See United States v. Atencio, 476 F.3d 1099, 1102 (10th Cir. 2007). In

addition, to impose a procedurally reasonable sentence, the sentencing court must

“afford defendants their rights under the Federal Rules of Criminal Procedure.”

Id. A sentence is substantively reasonable when it “reflects the gravity of the

crime and the § 3553(a) factors as applied to the case.” Id.

M oreover, although the Guidelines are now advisory, we accord a properly

calculated Guidelines sentence a presumption of substantive reasonableness, see

United States v. Kristl, 437 F.3d 1050, 1054–55 (10th Cir. 2006) (per curiam), an

approach the Supreme Court recently upheld as constitutional, Rita v. United

States, 127 S. Ct. 2456 (2007). In holding that the courts of appeals may accord

Guidelines sentences this presumption, the Supreme Court explained that the

Guidelines “seek to embody the § 3553(a) considerations” and “reflect a rough

approximation of sentences that might achieve § 3553(a)’s objectives.” Id. at

2464. Consequently, when a district court imposes a Guidelines sentence, it

reflects the “double determination” of the district court and the Sentencing

Commission regarding the proper sentence: “The upshot is that the sentencing

-6-
statutes envision both the sentencing judge and the Commission as carrying out

the same basic § 3553(a) objectives, the one, at retail, the other at wholesale.” Id.

at 2463. As the Court reasoned, an appellate presumption of reasonableness

“simply recognizes the real-world circumstance that when the judge’s

discretionary decision accords w ith the Commission’s view of the appropriate

application of § 3553(a) in the mine run of cases, it is probable that the sentence

is reasonable.” 3 Id. at 2465.

In affirming the use of an appellate presumption, the Court also emphasized

the nonbinding nature of the presumption. Id. at 2463. It does not function like

an evidentiary presumption, which requires one side to meet a particular burden

of proof, and it does not allow for the especially strong deference appellate courts

often grant an expert agency’s factual findings. Id. The presumption simply

reflects the increased likelihood that a G uidelines sentence will be reasonable

because it represents the combined judgment of the sentencing court and the

Sentencing Commission. Id. at 2465. W ith this in mind, we first determine

whether the D istrict Court correctly applied the G uidelines, reviewing the court’s

findings of fact for clear error and its legal conclusions de novo. See Kristl, 437

F.3d at 1054. W e then address M r. Geiner’s argument that his sentence is

3
In Rita, the Supreme Court cautioned that this presumption operates only
on appeal. A sentencing court may not presume that a Guidelines sentence
applies in any given case, but must comply with the “thorough adversarial testing
contemplated by federal sentencing procedure.” 127 S. Ct. at 2465.

-7-
unreasonable and unconstitutional.

A. Application of the Guidelines

The District Court applied a five-level increase to M r. Geiner’s sentence

under U.S.S.G. § 2G2.2(b)(3)(B), which enhances a sentence based on

“[d]istribution for the receipt, or expectation of receipt, of a thing of value, but

not for pecuniary gain.” The application note to this section defines the type of

distribution to which the enhancement applies as “any transaction, including

bartering or other in-kind transaction, that is conducted for a thing of value, but

not for profit.” U.S.S.G. § 2G2.2 app. n.1. The definition of “thing of value” is

clarified by the note as “anything of valuable consideration” and is illustrated by

an example: “For example, in a case involving the bartering of child pornographic

material, the ‘thing of value’ is the child pornographic material received in

exchange for other child pornographic material bartered in consideration for the

material received.” Id.

M r. Geiner argues that this enhancement should not apply because he did

not agree to provide access to his files in exchange for the files he sought from

others. Nor did he expect anyone to reciprocate by providing files or anything

else of value. In other words, because he did not communicate with anyone who

had access to his files and did not expect anyone to provide him with something

of value in return for his files, M r. Geiner contends that the District Court erred

in applying the five-level enhancement. Because this Court has yet to interpret

-8-
this particular Guidelines provision, we analyze the relevant language in detail,

focusing in particular on the meaning of “transaction,” “expectation,” and “thing

of value.”

1. The M eaning of “Transaction”

W e begin by addressing the argument that the enhancement applies only to

a bargained-for exchange or agreement between two or more traders in child

pornography. Although the application note contains terms familiar to contract

law, the plain language of the provision itself counsels against a narrow

interpretation of its application. A person need only have the “expectation of

receipt” of something of value for the enhancement to apply. This expectation

need not arise from an underlying agreement to exchange child pornography or

distribute it in return for a thing of value. Although the application note indicates

that “bartering” and “other in-kind transaction[s]” are examples of transactions to

which the enhancement applies, it does not limit the definition of transaction to

these examples. W e therefore agree with the Second Circuit’s interpretation of

the note’s language: “The word ‘including’ before the examples indicates that any

transaction— so long as it involves the ‘expectation’ of the ‘receipt’ of a ‘thing of

value’— suffices to trigger the subsection’s enhancement.” United States v.

M aneri, 353 F.3d 165, 170 (2d Cir. 2003); see also United States v. Oldham, 177

Fed. App’x 842, 846–47 (10th Cir. 2006) (unpublished) (agreeing with the Second

Circuit’s holding that a defendant may have an expectation in the “absence of a

-9-
specific agreement with another person”). Hence, M r. Geiner need not have

entered into a specific agreement or understanding with other individuals for the

enhancement to apply. The enhancement applies if he engaged in any transaction

with the expectation that he would receive a thing of value.

Our recent discussion of “distribution” under 18 U.S.C. § 2252A in United

States v. Shaffer, 472 F.3d 1219 (10th Cir. 2007), illustrates how M r. Geiner’s

conduct constitutes a “transaction.” In Shaffer, we interpreted the term

“distribution” under § 2252A(a)(2) 4 according to its plain meaning, holding that a

defendant distributes child pornography under the statute by “distributing,

delivering, transferring, or dispersing” it to others. Id. at 1223–24 (internal

quotation marks omitted). W e specifically held that a defendant distributes child

pornography by making computer files containing child pornography available for

others to download. Id. at 1223. W e likened a defendant who makes computer

files available in this manner to the owner of a self-serve gas station:

[N]either the owner nor his or her agents may ever pump gas. But
the owner has a roadside sign letting all passersby know that, if they
choose, they can stop and fill their cars for themselves, paying at the
pump by credit card. Just because the operation is self-serve . . . we
do not doubt for a moment that the gas station owner is in the
business of “distributing[]” . . . gasoline.

4
Under 18 U.S.C. § 2252A(a)(2), a person is subject to criminal liability if
he or she “knowingly receives or distributes . . . any child pornography [or any
material that contains child pornography] that has been mailed, or shipped or
transported in interstate or foreign comm erce by any means, including by
computer.”

-10-
Id. at 1223–24. W e also do not doubt that the gas station owner and the passerby

engage in a “transaction,” which includes both an “act or an instance of

conducting business or other dealings . . . [and] [a]ny activity involving two or

more persons.” Black’s Law Dictionary (8th ed. 2004). Hence, the meaning of

“distribution” under § 2252A easily falls within the meaning of the w ord

“transaction.” 5 Here, M r. Geiner does not dispute that he attempted to distribute

child pornography within the meaning of § 2252A. In addition, he does not

contest the District Court’s finding that a governmental agent was able to

download files containing child pornography from his computer. Because his

conduct satisfies our definition of distribution in Shaffer, 472 F.3d at 1224, it also

constitutes a “transaction” as that term is used in the application note to U.S.S.G .

§ 2G2.2. See Shaffer, 472 F.3d at 1224 (holding that defendant “distributed”

child pornography under § 2252A when others downloaded it after he made it

available through his use of a file-sharing program). Consequently, the only

5
The application note to U.S.S.G. § 2G2.2 defines “distribution” more
broadly than our interpretation of the term under § 2252A: “‘Distribution’ means
any act, including possession with intent to distribute, production, advertisement,
and transportation, related to the transfer of material involving the sexual
exploitation of a minor. Accordingly, distribution includes posting material
involving the sexual exploitation of a minor on a website for public viewing but
does not include the mere solicitation of such material by a defendant.” U.S.S.G .
§ 2G2.2 app. n.1. W e need not decide when conduct that meets this broader
definition of “distribution” will constitute a “transaction” in the ordinary sense
discussed above. Today, we only observe that conduct meeting the definition of
distribution in Shaffer, see 472 F.3d at 1223–24, is also a “transaction” as that
term is used in the application note to U.S.S.G. § 2G2.2.

-11-
remaining question is whether M r. Geiner expected to receive a thing of value.

2. The “Expectation of Receipt” of a “Thing of Value” Under U.S.S.G .

§ 2G2.2(b)(3)(B)

The term “expectation” in U.S.S.G. § 2G2.2(b)(3)(B) is a result of a 2000

amendment to the Guidelines. 6 As we recently noted, although this Court has yet

to interpret the amended language, the Second Circuit has interpreted the

provision at issue. See Oldham, 177 Fed. App’x at 846 (unpublished) (citing

M aneri, 353 F.3d 165). In M aneri, the Second Circuit explained when a

defendant expects to receive a thing of value under U .S.S.G. § 2G2.2(b)(3)(B):

“[B]ased on the ordinary meaning of the word ‘expectation,’ . . . [the] five-level

enhancement applies when a defendant distributes child pornography in

anticipation of, or while reasonably believing in the possibility of, the receipt of a

thing of value.” 353 F.3d at 169. W e agree that this interpretation reflects the

ordinary meaning of the word “expectation” and hold that a defendant expects to

receive a thing of value under U.S.S.G. § 2G2.2(b)(3)(B) when he distributes

child pornography in anticipation of, or while reasonably believing in the

possibility of, the receipt of a thing of value.

In the instant case, M r. Geiner clearly anticipated that he would receive a

thing of value when he enabled the software’s file-sharing feature in order to

6
The amended provision was originally codified at § 2G2.2(b)(2)(B). See
U.S. Sentencing Guidelines M anual § 2G2.2(b)(2)(B) (2000). In November 2004,
the enhancement at issue was recodified at § 2G2.2(b)(3)(B).

-12-
distribute files containing child pornography to others. The District Court found

that M r. Geiner enabled the file-sharing feature to allow others to access his files

because he wanted to be able to acquire child pornography on the file-sharing

network at a faster speed. In other words, he made his files available to others on

the network in anticipation of a faster downloading speed. Believing that others

would configure their systems to allow priority downloading, M r. Geiner expected

to become a priority trader w ho could acquire shared files more quickly.

Although he had no definite guarantee that others w ould so configure their

systems, he reasonably believed in that possibility and anticipated the benefit of

acquiring files at a more rapid speed.

M r. Geiner acknowledges that he configured his software to permit the

sharing of his files because he wanted to be able to download images at a faster

speed. Nevertheless, he contends that he did not expect to receive a “thing of

value” because he would have had access to the images he sought without

allowing others to access his files. He argues that, because he could have

downloaded the same images w ithout allowing this access, he did not expect to

receive a thing of value. In short, he argues that he did not expect to receive a

benefit when he configured the software on his computer to allow for the

distribution of files containing child pornography.

W e agree that M r. Geiner did not expect to access images and other files in

exchange for allowing other network users to access his files. Although other

-13-
courts have held that, by sharing files on a file-sharing network, a defendant

necessarily expects to receive a “thing of value” (i.e., access to other users’ files),

United States v. Griffin, 482 F.3d 1008, 1013 (8th Cir. 2007); United States v.

M cVey, 476 F. Supp. 2d 560, 563 (E.D. Va. 2007), we do not think the language

of U.S.S.G. § 2G2.2(b)(3)(B) permits such a broad interpretation. To apply the

enhancement to every defendant who shares files on a peer-to-peer file-sharing

network would be to disregard the connection between distribution and “thing of

value” in the provision’s requirement that “distribution [be] for the receipt, or

expectation of receipt, of a thing of value.” U .S.S.G. § 2G2.2(b)(3)(B) (emphasis

added). Although a defendant may share files on a file-sharing network with the

expectation of receiving other users’ files in return, this is not necessarily true in

every case. Indeed, the present case illustrates the exception. M r. Geiner

originally chose not to share his files with others on the network, but he still used

the software to access other users’ files. Thus, he did not begin sharing files

solely for the purpose of receiving them.

W e therefore disagree with the Eighth Circuit’s holding that the

enhancement automatically applies “to a defendant who downloads and shares

child pornography files via an internet peer-to-peer file-sharing network, as these

networks exist— as the name ‘file-sharing’ suggests— for users to share, swap,

barter, or trade files between one another.” Griffin, 482 F.3d at 1013; see also

M cVey, 476 F. Supp. 2d at 563 (“[T]he very purpose of belonging to any file-

-14-
sharing group is to facilitate the receipt of files from others by agreeing to allow

other persons[’] access to the files on one’s own computer.”). This broad

interpretation allows for the application of the enhancement based merely on a

defendant’s installation of file-sharing software or his use of a file-sharing

network. Although file sharing may be the purpose of these networks, in some

cases, users may be able to choose not to share files while still retrieving files

from others. Thus, a defendant who distributes child-pornography files by

sharing them on a file-sharing network does not necessarily do so in exchange for

similar files, particularly when the defendant understands that these files are

available even if he chooses not to share his own. Rather, whether a defendant

distributes files containing child pornography for the receipt, or expectation of

receipt, of other files available on the network is a question of fact properly

resolved on a case-by-case basis by the sentencing court.

In the case before us, although M r. Geiner did not distribute child

pornography with the expectation of receiving child pornography in return, he

nevertheless expected to receive a “thing of value.” As the District Court found,

once he allowed others to access his files, M r. Geiner expected to be able to

access and download files containing child pornography at a faster speed. A

“thing of value” need not have objective value, but may be something of value to

the defendant, as the example in the application note to U.S.S.G.

§ 2G2.2(b)(3)(B) illustrates: “For example, in a case involving the bartering of

-15-
child pornographic material, the ‘thing of value’ is the child pornographic

material received in exchange for other child pornographic material bartered in

consideration for the material received.” Id. The provision’s history also

indicates that a “thing of value” may be something valued by the defendant. Prior

to its 2000 amendment, § 2G2.2(b)(2) only provided for a five-level enhancement

in cases of distribution for pecuniary gain. In 2000, the Guidelines provision was

amended to include an enhancement for “distribution for the receipt, or

expectation of receipt, of a thing of value, but not for pecuniary gain.” Id.

(emphasis added); see also U.S.S.G. Appx. C, vol. II, Amendment 592

(explaining that the guideline was amended to make clear that it “applies to the

distribution of pornography both for monetary remuneration and a non-pecuniary

interest”).

Here, the record supports the conclusion that M r. Geiner valued the faster

downloading speed he gained in return for allowing others to access his files

containing child pornography. Furthermore, as M r. Geiner concedes, a “thing of

value” need not be tangible. See United States v. Nilsen, 967 F.2d 539, 542 (11th

Cir. 1992) (per curiam) (noting that “C ongress’ frequent use of ‘thing of value’ in

various criminal statutes has evolved the phrase into a term of art which the

courts generally construe to envelope both tangibles and intangibles”). The faster

downloading speed is therefore a “thing of value” in the context of this case.

In short, M r. Geiner distributed child pornography with the expectation that

-16-
he would receive a thing of value, that is, faster downloading capabilities

enabling him to obtain child pornography more easily and efficiently. Thus, the

District Court did not err in applying the enhancement in this case, and because

the court sentenced M r. Geiner within the applicable G uidelines range, his

sentence is entitled to a presumption of substantive reasonableness. See Kristl,

437 F.3d at 1055. As a practical matter, however, the application of the

presumption is unnecessary in this case. Because, as w e explain below , M r.

Geiner challenges the reasonableness of his sentence on procedural grounds, the

substantive reasonableness of the sentence is not at issue.

B. Consideration of the § 3553(a) Sentencing Factors

M r. Geiner contends that his sentence is both unreasonable under 18 U.S.C.

§ 3553(a) and unconstitutional because the District Court failed to consider the

sentencing factors delineated in § 3553(a) 7 and consequently applied the

Guidelines in a mandatory fashion in violation of United States v. Booker, 543

U.S. 220 (2005). He bases his argument on the fact that the court notified the

parties at the sentencing hearing that it intended to impose a Guidelines sentence

7
Under 18 U.S.C. § 3553(a), a sentencing court must consider: (1) the
nature of the crime and the characteristics of the defendant; (2) the need for the
sentence to reflect the seriousness of the crime, deter criminal conduct, protect
the public, and provide the defendant with needed training or treatment; (3) the
kinds of available sentences; (4) the sentencing range under the advisory
Guidelines; (5) policy statements issued by the Sentencing Commission; (6) the
need to avoid sentencing disparities among similar defendants; and (7) the need to
provide restitution to any victims of the crime.

-17-
and would not consider “impermissible bases for departure” (namely, departures

not sanctioned by the Guidelines).

Although “[r]easonableness review has both procedural and substantive

components,” Hildreth, 485 F.3d at 1127 (internal quotation marks omitted), M r.

Geiner does not challenge his sentence as substantively unreasonable. H is

contention that the District Court failed to consider the statutory factors contained

in § 3553(a) is a procedural argument challenging the District Court’s method for

calculating his sentence. Kristl, 437 F.3d at 1055 (“[T]he reasonableness

standard of review . . . necessarily encompasses both the reasonableness of the

length of the sentence [i.e., substantive reasonableness], as well as the method by

which the sentence w as calculated [i.e., procedural reasonableness].”); Atencio,

476 F.3d at 1102 (“In setting a procedurally reasonable sentence, a district court

must calculate the proper advisory Guidelines range and apply the factors set

forth in § 3553(a).”). In addition, M r. Geiner challenges his sentence on

constitutional grounds. He argues that, by failing to consider the § 3553(a)

factors, the District Court applied the Guidelines in a mandatory fashion, using

judge-found facts to enhance his sentence in violation of the Sixth Amendment.

See United States v. Booker, 543 U.S. 220 (2005).

M r. Geiner did not, however, raise these arguments below or otherwise

object to the procedure by which the District Court determined his sentence. W e

therefore limit our review to plain error: “Plain error occurs w hen there is (i)

-18-
error, (ii) that is plain, which (iii) affects the defendant’s substantial rights, and

which (iv) seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th Cir.

2007). But even under the “more exacting” review we apply to allegations of

constitutional error, see United States v. Brooks, 438 F.3d 1231, 1244 (10th Cir.

2006), we need not look beyond the first prong of the plain-error analysis here

because the D istrict Court committed no error.

As w e have repeatedly noted, a district court “need not recite any magic

words to show us that it fulfilled its responsibility to be mindful of the

[§ 3553(a)] factors that Congress has instructed it to consider.” United States v.

Pruitt, 487 F.3d 1298, 1303–04 (10th Cir. 2007) (quotation omitted). Indeed, w e

have held that “a specific discussion of Section 3553(a) factors is not required for

sentences falling within the ranges suggested by the Guidelines.” Ruiz-Terrazas,

477 F.3d at 1202. Although a more general discussion is not necessarily the best

practice, it is all that procedural reasonableness requires when a court imposes a

sentence within the applicable Guidelines range. Id. In discussing the

explanation required to support a G uidelines sentence, the Supreme Court

recently described the requisite level of detail in similar terms:

[W ]hen a judge decides simply to apply the Guidelines to a particular
case, doing so will not necessarily require lengthy explanation.
Circumstances may well make clear that the judge rests his decision
upon the Commission’s own reasoning that the Guidelines sentence
is a proper sentence (in terms of § 3553(a) and other congressional

-19-
 mandates) in the typical case, and that the judge has found that the
case before him is typical.

Rita, 127 S. Ct. at 2468. In Rita, the sentencing court’s statement of reasons was

“brief but legally sufficient.” Id. at 2469. Although the Court acknowledged that

the sentencing court “might have said more,” it concluded that an extensive

explanation for a Guidelines sentence was not required because the context and

the record demonstrated that “the sentencing judge considered the evidence and

arguments.” Id.

Similarly, the context and the record in the present case clearly indicate

that the D istrict Court considered the evidence and the arguments. In particular,

the record makes clear that the court rested its “decision upon the C ommission’s

own reasoning that the Guidelines sentence is a proper sentence” in this case. See

Rita, 127 S. Ct. at 2468. The District Court specifically explained that, in the

court’s judgment, a Guidelines sentence in this “kind of case” reflects the

purposes of § 3553(a). In addition, in addressing M r. Geiner’s argument for a

departure based on diminished capacity, see U.S.S.G. § 5K2.13, the court

discussed various § 3553(a) factors, including the nature of the offense and

characteristics of the defendant, § 3553(a)(1), the need for the sentence to protect

the public, § 3553(a)(2), the applicable Guidelines range, § 3553(a)(4), and

pertinent policy statements issued by the Sentencing Commission, § 3553(a)(5).

M oreover, in announcing the sentence prior to its imposition, the court explicitly

-20-
stated that its judgment was “[p]ursuant to the Sentencing Reform Act of 1984

and especially considering those factors set forth in 18 U.S.C. § 3553(a).” Hence,

as the record demonstrates, the D istrict Court treated the G uidelines as advisory

and considered the § 3553(a) factors in m aking its sentencing determination. It

did not, therefore, err in calculating M r. Geiner’s sentence.

W e note, however, that M r. Geiner does not argue that the D istrict Court

prevented him from commenting on a matter “related to an appropriate sentence”

under Federal Rule of Criminal Procedure 32. Under Rule 32(i), the sentencing

court “must allow the parties’ attorneys to comment on the probation officer’s

determinations and other matters relating to an appropriate sentence.” Fed. R.

Crim. P. 32(i)(1)(C) (emphasis added). Although M r. Geiner argues that the

District Court “limited” the parties’ arguments to permissible departures under the

Guidelines, he does not argue that the court actually refused to hear a specific

argument under § 3553(a). That is, M r. Geiner does not argue that the District

Court refused to hear an argument that he wished to make. 8 Consequently, in

upholding M r. Geiner’s sentence as procedurally reasonable, we are not

suggesting that a district court may refuse to hear arguments for modifying a

8
In addition, nothing in the record suggests that the District Court refused
to hear any of M r. Geiner’s arguments. After the court notified the parties that it
intended to impose a Guidelines sentence, M r. Geiner did not object or otherwise
indicate that he wished to introduce evidence for a departure or variance based on
§ 3553(a). Instead, M r. Geiner’s counsel indicated that the testimony she planned
to present was related to M r. Geiner’s diminished capacity, a ground for departure
under the Guidelines. See U.S.S.G. § 5K2.13.

-21-
Guidelines sentence when they are based solely on § 3553(a). To impose a

procedurally reasonable sentence, the district court must comply with the Federal

Rules of Criminal Procedure. Had the court prevented M r. Geiner from

comm enting on a matter related to an appropriate sentence, we would face a

different question. Today, we simply hold that the District Court did not apply

the G uidelines in a mandatory fashion and its method for calculating M r. Geiner’s

sentence was procedurally reasonable.

III. C ON CLU SIO N

For the foregoing reasons, we AFFIRM M r. Geiner’s sentence.

-22-