                                                                                FILED
                            NOT FOR PUBLICATION                                 NOV 16 2009

                                                                             MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                            U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 08-30434

              Plaintiff - Appellee,              D.C. No. CR-07-103-JDS

       v.
                                                 MEMORANDUM *
BASIL PETER HERBST,

              Defendant - Appellant.

                   Appeal from the United States District Court
                            for the District of Montana
                Jack D. Shanstrom, Senior District Judge, Presiding

                     Argued and Submitted November 2, 2009
                                Portland, Oregon

Before: FISHER and PAEZ, Circuit Judges, and MOSKOWITZ, District Judge.**

      Basil Peter Herbst (“Defendant”) appeals the district court’s judgment

imposing a sentence of seventy years for his conviction of nine counts of sexual

exploitation of children in violation of 18 U.S.C. § 2251(a), eight counts of sexual

exploitation of children in violation of 18 U.S.C. § 2251(b), one count of

       *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
          The Honorable Barry Ted Moskowitz, United States District Judge
for the Southern District of California, sitting by designation.
transportation of child pornography in violation of 18 U.S.C. § 2252A(a)(2), one

count of receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(2), one

count of possession of child pornography in violation of 18 U.S.C.

§ 2252A(a)(5)(B), and one related count of criminal forfeiture under 18 U.S.C.

§ 2253(a)(3). We affirm.

      Defendant challenges his sentence as unreasonable. “Regardless of whether

the sentence imposed is inside or outside the Guidelines range, the appellate court

must review the sentence under an abuse-of-discretion standard.” Gall v. United

States, 552 U.S. 38, 51 (2007). The appellate court reviews only whether the

sentence was reasonable. United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008)

(en banc). “[O]nly a procedurally erroneous or substantively unreasonable

sentence will be set aside.” Id.

      The district judge did not commit any procedural errors in imposing the

seventy-year sentence because he sufficiently considered and explained the

sentencing factors under 18 U.S.C. § 3553(a). “[W]hen a judge decides simply to

apply the Guidelines to a particular case, doing so will not necessarily require

lengthy explanation.” Rita v. United States, 551 U.S. 338, 356 (2007). Where a

defendant presents “nonfrivolous reasons for imposing a different sentence,

however, the judge will normally go further and explain why he has rejected those




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arguments.” Id. at 357. The judge’s explanation may be brief or it may be

extensive, depending on the circumstances of the case. Id.

      Here, although the district judge’s explanation was not lengthy, the record

demonstrates that the judge carefully considered the factors set forth in § 3553(a).

After initially acknowledging the applicable Guidelines range as the starting point,

the judge proceeded to address several § 3553(a) factors as he explained why he

chose to reject the Defendant’s sentence proposal and adopt a Guidelines sentence.

The judge did not specifically address every § 3553(a) factor, but a “district court

need not tick off each of the § 3553(a) factors to show that it has considered them.”

Carty, 520 F.3d at 992. Thus, the judge did not abuse his discretion by imposing a

procedurally improper sentence.

      We also hold that the Defendant’s sentence was substantively reasonable.

An appellate court must “give substantial deference to the district court’s

determination because it is better situated . . . to determine an appropriate

sentence.” United States v. Carter, 560 F.3d 1107, 1120 (9th Cir. 2009).

Furthermore, a “correctly calculated Guidelines sentence will normally not be

found unreasonable on appeal.” Id. (quoting Carty, 520 F.3d at 988). As

Defendant concedes, the district court correctly calculated the Guidelines range.

The district court reasonably concluded that a seventy-year sentence was necessary

to protect the public and to reflect the seriousness of the crime. Nothing in the

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Defendant’s circumstances “is so atypical as to put him outside the ‘minerun of

roughly similar’ cases considered by the Sentencing Commission in formulating

the Guidelines, nor are they ‘so special as to render [his] overall sentence

unreasonable.’” Carter, 560 F.3d at 1121–22 (quoting United States v. Stoterau,

524 F.3d 988, 1002 (9th Cir. 2008)). Accordingly, the district court did not abuse

its discretion in imposing the within-Guidelines sentence.

      AFFIRMED.




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