     Case: 09-10222     Document: 00511032323          Page: 1    Date Filed: 02/22/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                          February 22, 2010
                                     No. 09-10222
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

STEVE KELBY SAMPLES,

                                                   Defendant-Appellant


                   Appeals from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:08-CR-12-1


Before KING, STEWART and HAYNES, Circuit Judges.
PER CURIAM:*
        Steve Kelby Samples appeals the sentences imposed for his convictions on
one count of possession of child pornography and one count of transporting and
shipping child pornography. The district court sentenced Samples to a life term
of supervised release and concurrent terms of 120 months of imprisonment for
possession of child pornography and 240 months of imprisonment for
transporting and shipping child pornography.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-10222    Document: 00511032323 Page: 2        Date Filed: 02/22/2010
                                 No. 09-10222

      After United States v. Booker, 543 U.S. 220 (2005), this court reviews
sentences for reasonableness. Gall v. United States, 552 U.S. 38, 46 (2007). We
first examine whether the district court committed any procedural errors, “such
as failing to calculate (or improperly calculating) the Guidelines range, treating
the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence–including an explanation for any deviation from the
Guidelines range.” Id. at 51. If the district court’s decision is procedurally
sound, we will then “consider the substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard.” Id.
      Samples first argues that the district court erred as a matter of law in
sentencing him based on U.S.S.G. § 2G2.2 because § 2G2.2 fails, by its very
structure and application, to honor the sentencing considerations of § 3553(a).
Samples contends that § 2G2.2 is flawed because it was formulated based on
amendments by Congress directly, without empirical study and institutional
support by the Sentencing Commission, and that the guidelines ranges resulting
from the application of § 2G2.2 are inflated relative to the applicable statutory
minimum and maximum imprisonment terms.              Samples contends that the
district court was prohibited from considering § 2G2.2 in sentencing him and
that the district court committed procedural error by failing to discriminate
between a recidivist and a first-time offender such as Samples, in that the
sentence imposed upon Samples would have been reserved for a recidivist under
a properly formulated guideline. Samples concedes that this argument was
rejected in United States v. Meuir, No. 08-10380, 2009 WL 2222881 at *3 (5th
Cir. July 24, 2009) (unpublished). See Ballard v. Burton, 444 F.3d 391, 401 &
n.7 (5th Cir. 2006). However, he seeks to preserve the argument for further
review.
      Because Samples did not raise this argument in the district court, review
of this issue is for plain error only. See United States v. Campos-Maldonado, 531

                                        2
   Case: 09-10222    Document: 00511032323 Page: 3         Date Filed: 02/22/2010
                                 No. 09-10222

F.3d 337, 339 (5th Cir.), cert. denied, 129 S. Ct. 328 (2008). Samples has not
shown that the district court committed clear or obvious error in considering
§ 2G2.2 in sentencing him. See United States v. Salinas, 480 F.3d 750, 756 (5th
Cir. 2007); see also United States v. Duarte, 569 F.3d 528, 530 (5th Cir.), cert.
denied, 130 S. Ct. 378 (2009).
      Samples also contends that the district court committed procedural error
by considering only the seriousness of the offense, to the exclusion of the other
§ 3553(a) factors, and that his sentence is substantively unreasonable. The
record reflects that the district court adequately considered the § 3553(a) factors.
See United States v. Rodriguez, 523 F.3d 519, 525-26 (5th Cir.), cert. denied, 129
S. Ct. 624 (2008). Furthermore, deference is afforded to the district court’s
sentencing decision, and Samples’s sentence did not constitute an abuse of
discretion. See Gall, 552 U.S. at 51, 59-60.
      AFFIRMED.




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