     Case: 13-20100      Document: 00512587586         Page: 1    Date Filed: 04/07/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-20100
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                             April 7, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

D. J. CHRISTOPHER LOWE,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CR-141-1


Before DAVIS, BENAVIDES, and PRADO, Circuit Judges.
PER CURIAM: *
       D. J. Christopher Lowe pleaded guilty to six counts of sexual exploitation
of a child, one count of distribution of child pornography, and one count of
possession of child pornography. He appeals his sentence of 511 months of
imprisonment.
       Lowe first argues that the sentence imposed violates the Eighth
Amendment because it is grossly disproportionate to his offenses. We review


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 13-20100

constitutional claims de novo. See United States v. Romero-Cruz, 201 F.3d 374,
377 (5th Cir. 2000). When evaluating an Eighth Amendment proportionality
challenge, we first make a threshold comparison between the gravity of the
charged offense and the severity of the sentence. McGruder v. Puckett, 954
F.2d 313, 315-16 (5th Cir. 1992). If the sentence is not grossly disproportionate
to the offense, our inquiry is finished. See id. at 316. If the sentence is grossly
disproportionate, we then proceed to compare the sentence at issue with (1)
sentences imposed for similar crimes in the same jurisdiction and (2) sentences
imposed for the same crime in other jurisdictions. Id. In non-capital cases,
successful challenges to the proportionality of particular sentences are
“exceedingly rare.” Rummel v. Estelle, 445 U.S. 263, 272 (1980).
      In determining whether a sentence is “grossly disproportionate,” we look
to Rummel as a guide. McGruder, 954 F.2d at 317. In comparison to the life
sentence upheld in Rummel, Lowe has not shown that his 511-month sentence
he received was grossly disproportionate. Although Lowe had no criminal
history, we note that he victimized multiple children, engaged in sexual contact
with two of his own children, distributed images to at least one other person,
and had an extensive collection of other videos and images. Because Lowe has
not shown that his sentence was grossly disproportionate to his offenses, it is
unnecessary to proceed to the second step of the analysis and compare his
sentence to other cases. See McGruder, 954 F.2d at 316.
      Lowe also argues that his sentence is substantively unreasonable
because it gave too little weight to mitigating circumstances and represents a
clear error in balancing the sentencing factors of 18 U.S.C. § 3553(a). As an
initial matter, we note that Lowe’s sentence was a downward variance from
the sentence of life recommended by the Sentencing Guidelines. A sentence
within, or below, the applicable guidelines range is presumed to be reasonable.


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                                 No. 13-20100

United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006) (within guidelines
range sentence); United States v. Murray, 648 F.3d 251, 258 (5th Cir. 2011)
(below   guidelines   range   sentence).     To    rebut    the   presumption    of
reasonableness, a defendant must show that his sentence fails to take into
account a factor that should receive significant weight, gives significant weight
to an irrelevant or improper factor, or represents a clear error of judgment in
balancing the sentencing factors. United States v. Cooks, 589 F.3d 173, 186
(5th Cir. 2009).
      Lowe has not shown that the district court failed to account for a
sentencing factor that should have been accorded substantial weight, gave
substantial weight to an irrelevant or improper factor, or made a clear error of
judgment in balancing sentencing factors. See Cooks, 589 F.3d at 186. The
record shows that the district court listened to and carefully considered Lowe’s
arguments, stated that it had taken into account the Sentencing Guidelines,
and explicitly considered the factors set forth in § 3553(a). We conclude that
Lowe has not rebutted the presumption of reasonableness. See Murray, 648
F.3d at 258.
      AFFIRMED.




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