            Case: 15-14368    Date Filed: 09/27/2016   Page: 1 of 5


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-14368
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 1:14-cr-00025-WLS-TQL-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                    versus

BRIAN O. BRANNEN,

                                                           Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Georgia
                      ________________________

                             (September 27, 2016)

Before TJOFLAT, JULIE CARNES, and JILL PRYOR, Circuit Judges.

PER CURIAM:
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       Defendant Brian Brannen appeals his 78-month sentence, imposed after he

pleaded guilty to one count of possession of child pornography, in violation of 18

U.S.C. § 2252(a)(4)(B) and (b)(2). On appeal, he argues that his sentence is

substantively unreasonable based on perceived defects in the guideline provision

governing child pornography offenses, U.S.S.G. § 2G2.2. After careful review, we

affirm.

                                        DISCUSSION

       Using a two-step process, we review the reasonableness of a district court’s

sentence for abuse of discretion. United States v. Cubero, 754 F.3d 888, 892 (11th

Cir.), cert. denied, 135 S. Ct. 764 (2014). We first look to whether the district

court committed any procedural error, and then we examine whether the sentence

is substantively reasonable in light of the totality of the circumstances and the 18

U.S.C. § 3553(a) factors.1 Id. The party challenging the sentence bears the burden

of showing that it is unreasonable. United States v. Pugh, 515 F.3d 1179, 1189

(11th Cir. 2008). We will only vacate a defendant’s sentence if we are “left with

the definite and firm conviction that the district court committed a clear error of

1
  The § 3553(a) factors include: (1) the nature and circumstances of the offense and the history
and characteristics of the defendant; (2) the need to reflect the seriousness of the offense, to
promote respect for the law, and to provide just punishment for the offense; (3) the need for
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
education or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission;
(9) the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution
to victims. 18 U.S.C. § 3553(a).

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judgment in weighing the § 3553(a) factors by arriving at a sentence that lies

outside the range of reasonable sentences dictated by the facts of the case.” United

States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (quotation omitted).

      Here, Defendant cannot show that his sentence is substantively

unreasonable. As an initial matter, we expect Defendant’s 78-month sentence—

which is at the low end of the advisory guideline range of 78 to 97 months’

imprisonment—to be reasonable. See United States v. Hunt, 526 F.3d 739, 746

(11th Cir. 2008) (“Although we do not automatically presume a sentence within

the guidelines range is reasonable, we . . . expect a sentence within the Guidelines

range to be reasonable.” (quotation omitted)). Defendant’s sentence was also well

below the 20-year statutory maximum sentence authorized under 18 U.S.C.

§ 2252(a)(4)(B), (b)(2). See United States v. Gonzalez, 550 F.3d 1319, 1324 (11th

Cir. 2008) (suggesting that a sentence well below the statutory maximum is an

indicator of reasonableness).

      Moreover, in fashioning Defendant’s sentence the district court considered

Defendant’s history and characteristics, the nature and circumstances of the

offense, which involved possession of 25 pornographic videos of children (or

1,875 images), some involving sadistic or masochistic conduct, and the need to

provide just punishment for the offense. See 18 U.S.C. § 3553(a). In particular,

the district court expressed concern about the seriousness of child pornography


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offenses, even non-production cases such as the present offense. Cf. United States

v. Carpenter, 803 F.3d 1224, 1235 (11th Cir. 2015) (“[W]e have emphasized the

seriousness of child pornography offenses, and the harm they inflict on their

victims, time and again.”). Further, Defendant’s sentence was considerably lower

than the sentences of other defendants who have committed offenses involving the

possession of child pornography. See, e.g., id. at 1234–35 (concluding that

defendant’s 97-month sentence for possession of 4,800 images was not

substantively unreasonable).

      We are not persuaded by Defendant’s argument that his sentence is

unreasonable because U.S.S.G. § 2G2.2—the child pornography guideline used to

calculate his offense level—is not supported by empirical data. Although the

Supreme Court has concluded that a district court is permitted to vary from the

Guidelines in certain crack cocaine cases in part because those guidelines do not

encompass empirical data, Kimbrough v. United States, 552 U.S. 85, 91, 96 (2007),

we have concluded that the guideline involved in the present case, § 2G2.2, “does

not exhibit the [same] deficiencies,” Pugh, 515 F.3d at 1201 n.15.

      Defendant also questions the reasonableness of guidelines calculations under

§ 2G2.2 based on a report from the Sentencing Commission in 2013, which

recommended that the guideline governing child pornography offenses be revised.

However, we have previously held that the Sentencing Commission’s 2013 report


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does not dictate that a sentence is unreasonable where the district court applied the

§ 2G2.2 guideline in a non-production child pornography case. See Cubero, 754

F.3d at 900 (stating that the Sentencing Commission’s 2013 report “does not

render the non-production child pornography guidelines in § 2G2.2 invalid or

illegitimate”). And while a district court may consider the Sentencing

Commission’s report, as the district court did in the present case by addressing

Defendant’s arguments pertaining to it, the report does not require a court to

impose a sentence below the advisory guideline range. See id.

      In short, we cannot say that the district court imposed a sentence “that lies

outside the range of reasonable sentences dictated by the facts of the case.” See

Irey, 612 F.3d at 1190. Because Defendant has not shown that the district court

abused its discretion by imposing a 78-month sentence, his sentence is

AFFIRMED.




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