                         United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT

                                    ___________

                                    No. 08-2710
                                    ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       *    Appeal from the United States
      vs.                              *    District Court for the Eastern
                                       *    District of Arkansas
Anthony Jones,                         *
                                       *
            Appellant.                 *
                                    ___________

                             Submitted: January 13, 2009
                                 Filed: April 27, 2009
                                   ___________

Before MURPHY and SMITH, Circuit Judges, and KAYS,1 District Judge.
                            ___________

KAYS, District Judge.

      Anthony Jones pled guilty to a single count of possession of child pornography,
and the district court2 sentenced him to 78 months imprisonment, a term within the
advisory guidelines range. Jones appeals, arguing that the sentence imposed was
procedurally and substantively unreasonable. We affirm.


      1
         The Honorable Greg Kays, United States District Judge for the Western
District of Missouri, sitting by designation.
      2
       The Honorable William R. Wilson, Jr., United States District Judge for the
Eastern District of Arkansas.
                                   I. Background

       Following the execution of a search warrant that found approximately 5,000
images of child pornography on his computer, appellant Anthony Jones was charged
with receipt and distribution of child pornography. He pled guilty by agreement to a
single count of possession of child pornography.

        Prior to his sentencing Jones filed a 37 page memorandum identifying ten
factors that supported a downward departure or variance from the guidelines range.
In it Jones argued he was handicapped from birth by Asperger’s Syndrome, that he
was raised by a bipolar father who subjected him to mental and emotional abuse, that
he suffered physical pain from degenerative arthritis and isthmic spondylolisthesis (a
narrowing and bulging of vertebrae disks), and that he had recently had back surgery.
Jones suggested he could best be treated outside of prison, noting he had done well
on pretrial home incarceration and that he was doing well taking anti-anxiety and anti-
depressant medication under his doctor’s care, and argued incarceration would
exacerbate his health problems. Jones stipulated his total offense level was 28 and
that the guidelines sentencing range was 78 to 97 months.

      At the outset of the sentencing hearing the district court acknowledged reading
Jones’ memorandum and stated, “In determining a sentence, I’ll consider the factors
applicable in the statutes including 18 United States Code Section 3553 and the
regulations of the Guidelines, the federal sentencing Guidelines, and I’ll sentence
within the Guidelines unless there’s–within the Guideline range, unless there’s a
reasonable ground not to.” The court agreed that Jones’ offense level was 28 with a
Guideline range of 78 to 97 months.

     Jones suggested that in order to properly calculate the guideline range the court
needed to consider any applicable departures. Jones asserted that his mental, physical,

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and emotional factors warranted a downward departure separate from the § 3553(a)
factors. The court responded, “I’ll come back to that departure later.” The court then
announced that it was adopting the probation officer’s report. Counsel for Jones
interjected that it might be “prudent for the Court to rule on whether the departures
apply because if you rule that they do, then there could be a downward . . . departure
from that guideline range.” The court responded, “I’ll note your records made here
and relate it back, whichever way I rule.” The court held the guidelines range was 78
to 97 months and then heard argument as to the appropriate sentence.
       Jones made a detailed argument to the court that included a PowerPoint
presentation. Jones urged the court to depart below the guidelines range because of
the nature and circumstances of the offense, his history and characteristics, the
availability of alternate sentences, and the need to avoid unwarranted sentencing
disparities. Jones also suggested his incarceration would work a hardship on his
family because he provided care to his elderly parents.

       The government requested a sentence within the guidelines. It argued Jones’
mental, emotional, and physical limitations were taken into account when it allowed
him to plead to a single count of possession of child pornography, that time served
was not an available option, and that home incarceration was not reasonable in this
case. The government suggested Jones would receive treatment at a facility
designated for sex offenders, that a medical facility could address his back injury, and
that he was not irreplaceable in caring for his parents. The government distinguished
this case from two others in which the defendant was given a shorter term, and pointed
out that Jones was well-educated, had a good employment history, lived on his own,
and held a driver’s license. It argued there was no evidence that Asperger’s Syndrome
caused Jones to commit this crime.

       Before imposing sentence the court observed that defense counsel had “done
a lot of work obviously” on her client’s case. The court then imposed a sentence of
78 months to be followed by 10 years of supervised release, ordered mental health

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counseling, recommended Jones be placed in the proper medical and psychological
facility, explained his appeal rights, then announced it was in recess.

       Defense counsel then stated, “I just want to make sure that I renewed my
objection to the presentence report’s failure to recognize the downward departures and
also I believe that it’s proper procedure for the Court to make individualized findings
of facts as to the 3553(a) factors that we presented.” The court replied, “All right. Let
me get the 3553 factors here. What pages are they on in your memo?” Defense
counsel then directed the court to the list of factors in the memo’s table of contents.
The court stated,

      Yes. I’ve taken all of these factors into consideration and I do not
      believe that individually any two of them or any group of them warrant
      a departure below the guidelines. Regardless of what position the
      presentence report takes, I do not believe that a downward departure is
      appropriate. That’s my finding. Note your objection, save your
      exception. Anything else?

Following a brief discussion of surrender dates, the hearing ended.

      Jones appeals.

                                    II. Discussion

                            A. Procedural Reasonableness

       Jones contends the sentence was procedurally unreasonable because the district
court failed to state its reason for imposing a guidelines range sentence.




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      To preserve Rita3 or Gall4 error for appeal a defendant must do more than
request a non-guidelines sentence, he “must object to the district court’s erroneous
application of the law.” United States v. Bain, 537 F.3d 876, 881 (8th Cir. 2008). If
preserved for appeal we review a procedural error under an abuse of discretion
standard; if not properly preserved we review for plain error. Id.

                                       i. Rita error

       Jones alleges the district court committed Rita error by failing to sufficiently
explain its findings of fact with respect to the 18 U.S.C. § 3553(a) factors and
demonstrate that it had considered the parties’ arguments and had a reasonable basis
for exercising its decision-making authority. Jones did not object to this purported
failure, thus we review for plain error.

        When analyzing the § 3553 factors a district court is not required to provide a
full opinion in every case. Rita v. United States, 551 U.S. 338, --, 127 S. Ct. 2456,
2468 (2007); United States v. Phelps, 536 F.3d 862, 865 (8th Cir. 2008); United States
v. Sigala, 521 F.3d 849, 851 (8th Cir. 2008); see also United States v. Mosqueda-
Estevez, 485 F.3d 1009, 1012 (8th Cir. 2007) (noting, in a pre-Rita decision, that
defendants “do not have a right to have their sentences handed down according to any
particular script”). The sentencing judge need only “set forth enough to satisfy the
appellate court that he has considered the parties’ arguments and has a reasonable
basis for exercising his own legal decisionmaking authority.” Rita, 127 S. Ct. at 2468.
“The appropriate length of the statement will vary by case and may be relatively brief
if the district court rests its decision on the Sentencing Commission’s reasoning and
‘decides to apply the Guidelines to a particular case.’” United States v. Roberson, 517
F.3d 990, 994 (8th Cir. 2008) (quoting Rita, 127 S. Ct. at 2468). In determining

      3
          Rita v. United States, 551 U.S. 338, 127 S. Ct. 2456 (2007).
      4
          Gall v. United States, -- U.S.--, 128 S. Ct. 586 (2007).

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whether the district court adequately considered the § 3553 factors we review the
entire sentencing record, not just the judge’s statements at the hearing. Phelps, 536
F.3d at 866.

       In Sigala we held the district court’s statement was “brief but legally sufficient”
because the record showed that the court listened to defendant’s arguments and found
the circumstances of his particular case to be insufficient to warrant a sentence lower
than the advisory sentence. 521 F.3d at 851. The present case is analogous to Sigala.
While the district court could have said more, it is clear from the record that the court
considered Jones’ arguments and found from the facts of his case that he deserved a
sentence on the low end of the advisory guidelines. Although the court did not discuss
all the evidence in the record, clearly the court understood it. The court read
defendant’s sentencing memorandum, which contained a detailed discussion of the
applicable § 3553 factors, and stated it would consider all the § 3553 factors. The
court also listened to Jones’ evidence, watched his PowerPoint presentation, and
observed that defense counsel had done a lot of work on the case. At the conclusion
of the hearing the court stated, “I’ve taken all of these [§ 3553] factors into
consideration and I do not believe that individually any two of them or group of them
warrant a departure below the guidelines.” Far from ignoring Jones’ arguments, the
court found them persuasive enough to impose a sentence equal to the minimum
suggested by the guidelines. Rita instructs the district court to discuss the § 3553(a)
factors in more depth where–as here–the defendant presents nonfrivolous reasons for
a different sentence or a downward variance. 127 S.Ct. at 2468. We find the district
court’s explanation was sufficient and there is no Rita error.




                                           -6-
                                      ii. Gall error

       Jones also alleges the district court committed Gall error by failing to make an
individualized assessment of the defendant’s case based on the facts presented. The
issue is properly preserved and we review for abuse of discretion. Bain, 537 F.3d at
881.

        While the district court’s explanation of its individualized assessment was brief,
it is clear from the record that the court made an individualized assessment. At the
conclusion of the hearing the court reviewed a list of the relevant § 3553(a) factors
contained in defendant’s memorandum and confirmed that “I’ve taken all of these
factors into consideration.” While “a district court commits procedural error if it fails
to consider the § 3553(a) factors,” it “need not recite all the factors on the record,” nor
is it “required to make a specific rejoinder to each argument advanced by the
defendant.” United States v. Barron, 557 F.3d 866, 868 (8th Cir. 2009) (internal
citations omitted).

                            B. Substantive Reasonableness

      We review the substantive reasonableness of the district court’s sentence under
a deferential abuse of discretion standard. Id. at 870. Given that the district court
committed no significant procedural error and the sentence is within the advisory
guidelines, we presume the sentence is substantively reasonable. United States v.
Magana-Aguirre, 546 F.3d 957, 960 (8th Cir. 2008).

       Jones argues his sentence is unreasonable because the court failed to consider
as a basis for a downward variance that the application of the Guidelines to sex crimes
involving children tends to produce sentences greater than necessary to achieve the
purposes of 18 U.S.C. § 3553(a). Jones contends these Guidelines do not “exemplify
the Commission’s exercise of its characteristic institutional role” of basing

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determinations on “empirical data and national experience, guided by a professional
staff with appropriate expertise,” because for policy reasons Congress has directed the
Commission to raise penalties with respect to these offenses. See United States
Sentencing Commission, Fifteen Years of Guidelines Sentencing at 72-73 (Nov.
2004).

      We recently observed that the Supreme Court “has been equivocal about
whether a sentencing court owes greater deference to guidelines that do exemplify this
‘characteristic institutional role,’ and whether closer appellate review is warranted
with respect to variances from such guidelines.” Barron, 557 F.3d at 871 (citations
omitted). “But assuming that a sentencing court may disregard” a sentencing
guideline on policy grounds, this does not mean “a district court must disagree with
any sentencing guideline, whether it reflects a policy judgment of Congress or the
Commission’s ‘characteristic’ empirical approach.” Id. (emphasis in original).
Consequently, we cannot say the district court abused its discretion in denying Jones’
request for a downward variance.

      The judgment of the district court is affirmed.

                         _________________________________




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