                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0297n.06
                            Filed: April 22, 2009

                                           No. 08-5657

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                )
                                                         )         ON APPEAL FROM THE
       Plaintiff-Appellee,                               )         UNITED STATES DISTRICT
                                                         )         COURT FOR THE WESTERN
v.                                                       )         DISTRICT OF TENNESSEE
                                                         )
WILLIAM EDMISTON, JR.,                                   )                           OPINION
                                                         )
       Defendant-Appellant.                              )




BEFORE:        CLAY and McKEAGUE, Circuit Judges; and HOLSCHUH, Senior District
               Judge.*

       PER CURIAM. William Edmiston, Jr., pleaded guilty to one count of possessing child

pornography. At the time of his sentencing, Edmiston was eighty three years old. While his defense

counsel argued that Edmiston should receive a sentence of probation, the district court disagreed and

sentenced him to a term of imprisonment of one year and one day, a term significantly below the

sentencing range recommended under the Guidelines. On appeal, Edmiston argues that his sentence

is unreasonable. For the reasons set forth below, we find that his sentence is reasonable and affirm.



                                                  I


       *
         The Honorable John D. Holschuh, Senior United States District Judge for the Southern
District of Ohio, sitting by designation.
No. 08-5657
United States v. Edmiston

       The Federal Bureau of Investigation received information that Edmiston purchased a

membership to a website using OrangeBill, an online business which processed credit card payments

for various websites, including websites depicting child pornography. Based on this information,

postal inspectors mailed a letter to Edmiston advertising the sale of child pornography. He

responded that he was interested in receiving further information about pornographic movies

depicting girls in the age ranges of nine to thirteen and thirteen to eighteen. Postal inspectors sent

him a form to order the child pornography; the form noted “that discretion [was] necessary due to

the sensitive and illegal content of these movies.” Presentence Report (“PSR”) at 4. Edmiston

ordered two of the listed DVDs, the descriptions of which were particularly violent.

       Postal inspectors conducted a controlled delivery of the DVDs. Edmiston signed for the

package. Approximately thirty seconds later, a beeper that inspectors had installed inside the

package began emitting a noise, alerting them that the package had been opened and the contents

removed. The inspectors served Edmiston with a search warrant moments later. The inspectors

recovered the DVDs and portions of the order forms and descriptions. A search of his computer

further revealed the possession of thirty images involving a pubescent female engaged in lewd and

lascivious behavior. In a subsequent interview, Edmiston admitted that he ordered the DVDs and

knew that the DVDs contained child pornography.

       On July 9, 2007, a federal grand jury returned a one-count indictment against Edmiston,

charging that he knowingly possessed, and attempted to possess, child pornography, in violation of

18 U.S.C. § 2252(a)(4)(B). On February 20, 2008, he pleaded guilty to the single count without a

plea agreement.

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No. 08-5657
United States v. Edmiston

       The probation office prepared a PSR. Using the 2007 edition of the Guidelines Manual, the

probation office calculated a base offense level of eighteen, with the following adjustments: a four-

point enhancement for material that portrays sadistic or masochistic conduct or other depictions of

violence (U.S.S.G. § 2G2.2(b)(4)); a two-point enhancement for the use of a computer or an

interactive computer service for the possession, transmission, receipt, or distribution of the material

(U.S.S.G. § 2G2.2(b)(6)); a three-level enhancement because of the number of images (U.S.S.G. §

2G2.2(b)(7)(B)); and a three-level reduction for acceptance of responsibility (U.S.S.G. § 3E1.1). PSR

at 7-8. The resulting adjusted Guidelines offense level equaled twenty four. Id. at 8. With a criminal

history category of I, id. at 9, the Guidelines range of imprisonment was fifty-one to sixty-three

months of imprisonment, id. at 13.

       After hearing testimony from Edmiston and his daughter, reviewing the Guidelines

calculations, and considering the other sentencing factors set out in 18 U.S.C. § 3553(a), the district

court went below the advisory range and sentenced the defendant to a term of imprisonment of

twelve months and one day. Edmiston now challenges the reasonableness of that sentence.



                                                  II

       “Sentences imposed post-Booker are reviewed for procedural and substantive

reasonableness.” United States v. Conatser, 514 F.3d 508, 519 (6th Cir.) (citing United States v.

Booker, 543 U.S. 220, 261 (2005); United States v. Williams, 432 F.3d 621, 623 (6th Cir. 2005)),

cert. denied, 129 S. Ct. 450 (2008). We first look to whether the district court committed any

“significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines

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No. 08-5657
United States v. Edmiston

range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a

sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” Gall

v. United States, 128 S. Ct. 586, 597 (2007). If procedurally sound, we then review the sentence for

substantive reasonableness under an abuse-of-discretion standard. Id.

       On appeal, Edmiston contends that the district court erred in denying his request for a three-

level reduction pursuant to U.S.S.G. §2X1.1 (Attempt, Solicitation, or Conspiracy (Not Covered by

a Specific Offense Guideline)). He argued before the district court that his actions amounted to an

attempt because, although the DVDs were delivered to his residence, he never truly possessed them

and never viewed them. The district court rejected his objection, finding that he did possess the

DVDs, even if only for a short period of time, and viewing them was not an element of possession

of child pornography under 18 U.S.C. § 2252(a)(4)(B).

       We find that the district court did not err in calculating Edmiston’s Guidelines range. Section

2X1.1 is intended to apply when “the arrest occurs well before the defendant . . . has completed the

acts necessary for the substantive offense.” U.S.S.G. § 2X1.1, Background. As the district court

correctly pointed out, Edmiston did possess the illegal materials, and actually viewing the materials

is not an element of the crime. As Edmiston had completed the necessary acts for possession of

child pornography, the § 2X1.1 departure was not available to him. In any event, Edmiston’s

argument completely ignores the illegal images that authorities discovered on his computer.

       In his next claim, Edmiston maintains that any sentence of imprisonment is substantively

unreasonable. He grounds his claim on his advanced age, his myriad health problems (life-long

problems with his right leg resulting from childhood polio, cataracts, enlarged prostrate, and high

                                                -4-
No. 08-5657
United States v. Edmiston

blood pressure), his otherwise unblemished criminal history, and his cooperation with authorities.

Yet, these are all matters that the district court considered when weighing the various sentencing

factors of 18 U.S.C. § 3553(a). The district court agreed with Edmiston that a sentence within the

advisory Guidelines range would be longer than necessary for an individual in his situation.

However, the district court also properly considered the serious nature of Edmiston’s crime,

especially the violent depiction of the child pornography. The district court explained that it had to

consider the deterrent effect of a term of imprisonment not only as to Edmiston, but also as to society

at large. Given all of this, it concluded that a minimal custody sentence was warranted. Upon

review of the entire record, including the transcript of the sentencing hearing, we find no abuse of

discretion in the district court’s reasoning on this score.



                                                  III

       For the reasons set forth above, we AFFIRM.




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