United States v. Michael Bailey

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 17 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-10427

Plaintiff-Appellee, D.C. No. 2:14-cr-00207-GEB

v.
MEMORANDUM*
MICHAEL BAILEY,

Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., District Judge, Presiding

Submitted July 11, 2017**

Before: CANBY, KOZINSKI, and HAWKINS, Circuit Judges.

Michael Bailey appeals from the district court’s judgment and challenges the

151-month sentence imposed following his guilty-plea conviction for receipt and

distribution of child pornography, in violation of 18 U.S.C. § 2252(a)(2). We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
 Bailey argues that the district court procedurally erred by failing to address

his request for a downward variance or departure under U.S.S.G. § 5H1.4 to reflect

his health problems and traumatic brain injury. We review for plain error, see

United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and

conclude that there is none. The record reflects that the district court considered

Bailey’s sentencing arguments, specifically noted his age and poor health, and

adequately explained the low-end sentence. See United States v. Carty, 520 F.3d

984, 992 (9th Cir. 2008) (en banc).

Bailey also contends that his within-Guidelines sentence is substantively

unreasonable in light of his mitigating factors and the fact that, in his view, the

Guidelines overinflate the sentencing ranges for child pornography offenses. The

district court did not abuse its discretion. See Gall v. United States, 552 U.S. 38,

51 (2007). The sentence is substantively reasonable in light of the 18 U.S.C.

§ 3553(a) factors and the totality of the circumstances, including the nature of the

videos Bailey collected and his admitted “sexting” with minor girls.

AFFIRMED.

2 16-10427