     Case: 12-30123   Document: 00512118228        Page: 1   Date Filed: 01/18/2013




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

                                                                    FILED
                                                                 January 18, 2013
                                No. 12-30123
                              Summary Calendar                     Lyle W. Cayce
                                                                        Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee

v.

ANTHONY PAUL SOWDERS,

                                           Defendant-Appellant


                 Appeal from the United States District Court
                    for the Western District of Louisiana
                           USDC No. 5:11-CR-62-16


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:
      Anthony Paul Sowders pleaded guilty to engaging in a child exploitation
enterprise in violation of 18 U.S.C. § 2252A(g). He was sentenced above the
guidelines range of 240 to 293 months of imprisonment to 324 months of
imprisonment and a lifetime of supervised release. Sowders contends that his
sentence is substantively unreasonable based on the facts of his case and
because U.S.S.G. § 2G2.6, the Sentencing Guideline for engaging in a child
exploitation enterprise, is itself unreasonable.
      The substantive reasonableness of a sentence is reviewed for abuse of
discretion. Gall v. United States, 552 U.S. 38, 51 (2007). We consider “the
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                                  No. 12-30123

totality of the circumstances, including the extent of any variance from the
Guidelines range” and “must give due deference to the district court’s decision
that the § 3553(a) factors, on a whole, justify the extent of the variance.” Id. “A
non-Guideline sentence unreasonably fails to reflect the statutory sentencing
factors where it (1) does not account for a factor that should have received
significant weight, (2) gives significant weight to an irrelevant or improper
factor, or (3) represents a clear error of judgment in balancing the sentencing
factors.” United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006).
      Sowders contends that § 2G2.6 is unreasonable because it lacks an
empirical basis, was formulated by Congress, punishes offenders who have no
physical contact with a child more harshly than offenders who have physical
contact, is premised on an unfounded assumption regarding the risk that the
defendant will progress from committing an internet sex offense to a contact
offense, and has enhancements for conduct that is inherent in the offense. In
United States v. Miller, 665 F.3d 114, 119, 121 (5th Cir. 2011), cert. denied, 132
S. Ct. 2773 (2012), we rejected the argument that similar defects in § 2G2.2, the
Guideline for sexual exploitation of a minor, rendered the defendant’s sentence
substantively unreasonable. By analogy, Sowders cannot demonstrate that his
sentence is substantively unreasonable simply because he contends that § 2G2.6
is flawed.
      Sowders also contends that his sentence is substantively unreasonable
because the district court imposed a sentence based on moral outrage rather
than a reasoned analysis of the 18 U.S.C. § 3553(a) factors. He argues that the
district court discounted his history and characteristics and lack of physical
contact with a victim and instead focused exclusively on a victim-impact
statement. He also argues that the district court engaged in pure speculation
by expressing its concern about the possibility of recidivism. In addition, he
argues that the national trend of varying downward from the guidelines ranges



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                                   No. 12-30123

in child-pornography-related cases shows that the upward variance in this case
is even more unreasonable.
      Sowders’s argument that the trend in varying downward shows that the
upward variance in his case is unreasonable is unavailing. See Miller, 665 F.3d
at 122. None of Sowders’s remaining arguments demonstrates that his sentence
fails to account for a § 3553(a) factor that should have received significant
weight, relies on an improper factor, or constitutes a clear error of judgment in
balancing the relevant § 3553(a) factors. See Smith, 440 F.3d at 708. The
district court used strong language in condemning Sowders’s conduct, but the
district court did so while making an individualized assessment of the § 3553(a)
factors. The district court was aware of the mitigating factors but expressly
concluded that they were outweighed by the aggravating factors. The district
court reasoned that the detrimental effect of Sowders’s conduct on the victim and
the purposeful and predatory nature of his abuse of that victim outweighed his
positive attributes and lack of physical contact with the victim. The district
court’s concern that Sowders would recidivate was supported by the record
evidence of his persistent interest in child pornography.
      The district court gave a “thorough justification” for the variance in this
case. United States v. McElwee, 646 F.3d 328, 344 (5th Cir. 2011). Given the
significant deference that we give to a district court’s consideration of the
§ 3553(a) factors, see Gall, 552 U.S. at 51, and the district court’s reasons for its
sentencing decision, Sowders has not demonstrated that the sentence is
substantively unreasonable, see McElwee, 646 F.3d at 344-45.
      The judgment of the district court is AFFIRMED.




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