     Case: 12-50551       Document: 00512242335         Page: 1     Date Filed: 05/15/2013




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

                                                                            FILED
                                                                           May 15, 2013
                                     No. 12-50551
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

CHAD D’BINION,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:11-CR-2419-1


Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
       Chad D’Binion appeals the sentences imposed following his guilty plea
convictions for receipt of child pornography, distribution of child pornography,
and two counts of possession of child pornography. The district court sentenced
D’Binion to concurrent sentences of 120 months of imprisonment and 10 years
of supervised release on each count. The sentences were below the guidelines
range on the receipt and distribution counts and within the guidelines range on
the possession counts.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-50551

      D’Binion argues that the sentences were substantively unreasonable
because they were greater than necessary to meet the requirements of 18 U.S.C.
§ 3553(a). He argues that the guidelines sentence range was unreasonably high
because the child pornography Guideline, U.S.S.G. § 2G2.2, lacks an empirical
basis and results in excessive sentences even in “mine run” cases. He maintains
that the district court made a clear error in judgment by not concluding that the
guidelines sentence range was excessive. Acknowledging that the argument is
foreclosed by circuit precedent and raising the argument to preserve it for
further review, he asserts that no presumption of reasonableness should attach
to his sentences because § 2G2.2 lacks an empirical basis. He maintains that
lesser sentences were appropriate because he was not one of the worst child
pornography offenders and because of his youth, his family history of moving
back and forth between the United States and Mexico, his expressed desire to
reform himself, and his lack of any prior incarceration.
      In the district court, D’Binion did not object to the substantive
reasonableness of the sentences. D’Binion argues that such an objection is not
required to preserve the substantive reasonableness of a sentence for review, but
he acknowledges that this argument is foreclosed by circuit precedent and raises
the issue to preserve it for further review.        Accordingly, we review the
substantive reasonableness of the sentences for plain error only. See United
States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). Under the plain error
standard, D’Binion must show a clear or obvious forfeited error that affected his
substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If
D’Binion makes such a showing, we have discretion to correct the error but
should do so only if the error seriously affects the fairness, integrity, or public
reputation of the proceedings. See id.
      D’Binion’s sentences that were within the guidelines range are afforded
a presumption of reasonableness. See United States v. Alonzo, 435 F.3d 551, 554
(5th Cir. 2006). As D’Binion acknowledges, the lack of an empirical basis for the

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                                  No. 12-50551

Guideline that was the basis of the sentences does not affect the presumption of
reasonableness. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.
2009).
      The district court considered D’Binion’s arguments for sentences below the
guidelines range, and, with specific reference to the § 3553(a) sentencing factors,
found that concurrent sentences of 120 months of imprisonment, below the
guidelines range on two counts and within the guidelines range on two counts,
were appropriate. “We traditionally entrust sentencing to the discretion of
district courts, which are close to the ground and more cognizant of the details
of the offender and offense that should be determinative of the sentence.” United
States v. Murray, 648 F.3d 251, 258 (5th Cir. 2011), cert. denied 132 S. Ct. 1065
(2012) (internal quotation marks and citation omitted). The fact that we “might
reasonably have concluded that a different sentence was appropriate is
insufficient to justify reversal of the district court.” Gall v. United States, 552
U.S. 38, 51 (2007). Considering the totality of the circumstances, as this court
must, see Gall, 552 U.S. at 51, D’Binion has not shown that the sentences were
plainly erroneous. See Rita v. United States, 551 U.S. 338, 359-60 (2007); Peltier,
505 F.3d at 392-94.
      AFFIRMED.




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