                       United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-1601
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Western District of Missouri.
Leslie Paul Pittock,                    *
                                        * [UNPUBLISHED]
             Appellant.                 *
                                   ___________

                             Submitted: April 14, 2008
                                Filed: August 22, 2008
                                 ___________

Before WOLLMAN, BEAM, and RILEY, Circuit Judges.
                          ___________

PER CURIAM.

       Leslie Paul Pittock pled guilty to transportation and possession of child
pornography in violation of 18 U.S.C. § 2252A(a)(1), (5). The district court1
sentenced him to concurrent sentences of 210 months’ imprisonment on the
transportation charge and 120 months on the possession charge; lifetime supervised
release; and a $200 special assessment. Pittock appeals, contending that the district
court erred in affording a presumption of reasonableness to the sentencing range
established by the Sentencing Guidelines. We affirm.

      1
        The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
      At Pittock’s sentencing hearing, which took place prior to the Supreme Court’s
decision in Rita v. United States, 127 S. Ct. 2456 (2007), the district court stated:

      The sentencing range calculated pursuant to the United States Sentencing
      Guidelines is today under the extant law of this Circuit a presumptively
      reasonable range. There is a case before the United States Supreme
      Court which might result in a change in that approach but nevertheless
      that is the law today and that is the law I am required by my oath to
      follow and apply.

Sent. Tr. at 33. In light of Rita’s holding that “the sentencing court does not enjoy the
benefit of a legal presumption that the Guidelines sentence should apply,” id. at 2465,
the district court’s application of a presumption of reasonableness constituted a
significant procedural error. United States v. Greene, 513 F.3d 904, 907 (8th Cir.
2008).

       Pittock raised a timely objection during sentencing and thereby preserved his
right to challenge the error. Accordingly, we review for harmless error the district
court’s application of the presumption. United States v. Henson, No. 07-1993 (8th
Cir. July 25, 2008); Greene, 513 F.3d at 908; see also United States v. Cullen, 432
F.3d 903, 906 (8th Cir. 2006). As the beneficiary of a non-constitutional2 error under
Booker or Rita, the government bears the burden of demonstrating beyond a grave
doubt that the error did not substantially influence the outcome of the sentencing
proceedings. See Cullen, 432 F.3d at 906.

       The government argues that because the district court declined to exercise its
discretion to grant a traditional departure and carefully considered all of the § 3553(a)
factors, it did not solely rely on the presumption of reasonableness in imposing

      2
       Pittock stipulated to all of the facts necessary for the Guidelines enhancements
applied by the district court, and thus the Sixth Amendment is not implicated. See
United States v. Perez-Ramirez, 415 F.3d 876, 877 (8th Cir. 2005).

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sentence but imposed what it determined to be a reasonable sentence in the
circumstances. We agree. In its thorough consideration of the § 3553(a) factors, the
district court noted that Pittock’s case was not a normal child pornography case but
an unusual one in that it involved the possession of a large number of images,
including some that portrayed infants being sexually abused. Sent. Tr. at 33-34. The
district court concluded that a sentence within the Guidelines range, even if
“fearsome,” would promote respect for the law, protect the public from further crimes
instigated by Pittock, and avoid sentencing disparities. Sent. Tr. at 34-36. In contrast
to the situation in Greene, 513 F.3d at 907-08, the district court expressed no wish to
impose a sentence at variance with the Guidelines range, and it did not fail to assess
the relevant factors in determining the sentence. The district court acknowledged that
Pittock had presented grounds for a downward departure under the Guidelines, but it
declined to so depart, instead imposing a sentence at the bottom of the suggested
Guidelines range. See United States v. Perez-Ramirez, 415 F.3d at 878 (error
harmless where the district court “left unused some of its discretion”). In sum, we are
not left with a grave doubt that the district court would have imposed a different
sentence had it not applied a presumption of reasonableness to the sentencing range
recommended by the Guidelines. See Henson, slip op at 4-5.

      The judgment is affirmed.
                      ______________________________




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