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

                                                                            FILED
                                                                           July 22, 2008

                                     No. 07-30140                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


UNITED STATES OF AMERICA

                                                  Plaintiff - Appellee
v.

MICHAEL ANTHONY WILLIAMS

                                                  Defendant - Appellant



                    Appeal from the United States District Court
                       for the Western District of Louisiana
                            USDC No. 2:06-CR-20063-1


Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
         This case is before us on remand from the United States Supreme Court.
The Court vacated our judgment in United States v. Williams, 250 F. App’x 84
(5th Cir. 2007), and remanded the case for further consideration in light of Gall
v. United States, 128 S. Ct. 586 (2007). Williams v. United States, 128 S. Ct.
2052 (2008). For the reasons stated below, we affirm the judgment of the district
court.


         *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                 No. 07-30140

                              I. BACKGROUND
      On June 13, 2006, defendant-appellant Michael Anthony Williams was
charged with one count of possession of child pornography. On October 12, 2006,
Williams pleaded guilty. In connection with Williams’s plea, the parties filed a
joint stipulation in which Williams admitted that on August 19, 2006, federal
agents seized his computer, which contained hundreds of child pornography
images that Williams had downloaded from the internet.
      On November 30, 2006, a United States Probation Officer submitted a Pre-
Sentence Investigation Report (PSR). The PSR calculated an advisory guideline
range of 78 to 97 months. Neither party objected to the PSR. However, on
January 9, 2007, Williams filed a sentencing memorandum urging the district
court to sentence him below the advisory range set by the United States
Sentencing Guidelines (the “Guidelines”), namely a sentence of probation or
home confinement.     Williams argued that since he had voluntarily begun
receiving psychological treatment at the Lafayette Psychology Center with Dr.
Maureen Brennan, a sentence of probation or home confinement that allowed
him to continue to receive treatment would best satisfy the sentencing factors
set forth in 18 U.S.C. § 3553(a). Williams submitted reports from Dr. Brennan
along with letters from friends and family members in support of his
memorandum. One of those letters indicated that Williams had previously
babysat his friend’s two small children.
      On January 26, 2007, after hearing argument from both parties, the
district court sentenced Williams to 78 months of imprisonment and a lifetime
term of supervised release thereafter, and ordered Williams to receive mental
health treatment as a condition of his supervised release. The district court
stated that: “In determining the sentence to be imposed, I’ve considered the
factors contained in 18 U.S.C. [§] 3553, the Advisory Sentencing Guidelines, all
of the submissions that have been made by the defendant along with [defense


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counsel’s] eloquent argument and memorandum.”           The district court was
persuaded by defense counsel to impose the minimum Guidelines sentence, but
refrained from departing downward because Dr. Brennan’s report stated that
Williams was “only beginning to gain any insight into his behavior,” and
Williams had allowed himself to be placed in a supervisory role over small
children when babysitting for his friend.
      Williams filed a timely appeal to this court, arguing that his sentence:
(1) was unreasonable because it was greater than necessary to meet the
sentencing objectives of § 3553(a); and (2) was unreasonable as a matter of law
because this court’s application of a presumption of reasonableness to within-
Guidelines-range sentences violated the Sixth Amendment.
      We affirmed the district court’s judgment. Williams, 250 F. App’x at 85.
We noted that there was no dispute that the Guidelines range was properly
calculated and, therefore, found that Williams’s sentence was entitled to a
rebuttable presumption of reasonableness. Id. at 84 (citing United States v.
Alonzo, 435 F.3d 551, 553-54 (5th Cir. 2006)). Nothing in the record indicated
to us that Williams’s sentence was unreasonable. Id. at 85. Moreover, while
Williams conceded that his objection to the presumption of reasonableness was
foreclosed by circuit precedent, we also noted that the Supreme Court had
recently affirmed the application of a presumption of reasonableness. Id. (citing
Rita v. United States, 127 S. Ct. 2456, 2462-66 (2007)).
      On January 3, 2008, Williams filed a Petition for Writ of Certiorari in the
United States Supreme Court. On April 21, 2008, the Court vacated this court’s
judgment and remanded the case for further consideration under Gall. See
Williams, 128 S. Ct. 2052. We now revisit this case in light of Gall.




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                                     II. DISCUSSION
       A district court’s sentence must be based on an individualized assessment
of the facts presented. United States v. Campos-Maldonado, – F.3d – , 2008 WL
2357364, at *1 (5th Cir. 2008) (citing Gall, 128 S. Ct. at 596-97). The district
court must start by properly calculating the Guidelines range. Gall, 128 S. Ct.
at 596 (citation omitted). Next, the district court should give the parties an
opportunity to argue for whatever sentence they deem appropriate, and then
“consider all of the § 3553(a) factors to determine whether they support the
sentence requested by a party.” Id. The district court “may not presume that
the Guidelines range is reasonable.”               Id. at 596-97. The “individualized
assessment necessarily means that the sentencing court is free to conclude that
the applicable Guidelines range gives too much or too little weight to one or more
factors, either as applied in a particular case or as a matter of policy.” Campos-
Maldonado, 2008 WL 2357364, at *1 (citation and internal quotation marks
omitted).
       We review a district court’s sentencing decision for abuse of discretion.
Gall, 128 S. Ct. at 597.1 We first “determine whether the [d]istrict [c]ourt
committed any significant procedural error.” United States v. Rowan, – F.3d – ,
2008 WL 2332527, at *1 (5th Cir. 2008) (citing Gall, 128 S. Ct. at 597; United
States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008)). The district court:
              commits a procedural error if it miscalculates or fails to
              calculate the proper Guidelines range; it treats the
              Guidelines as mandatory; it imposes a sentence based
              on clearly erroneous facts; it fails to consider the factors
              set forth in 18 U.S.C. § 3553(a); or it fails adequately to


       1
         Williams did not specifically object to the district court that his sentence imposed was
unreasonable, which arguably could result in plain-error review. See United States v.
Hernandez-Martinez, 485 F.3d 270, 272 (5th Cir. 2007). Yet, as we held in our original opinion,
we need not decide whether plain-error review applies because even under an abuse-of-
discretion standard Williams’s arguments fail.

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             explain its chosen sentence or any deviation from the
             Guidelines range.
Id. (citing Gall, 128 S. Ct. at 597; Rodriguez, 523 F.3d at 525). If the district
court did not commit a significant procedural error, “we review the sentence for
substantive reasonableness.” Id. (citing Gall, 128 S. Ct. at 597; Rodriguez, 523
F.3d at 525).
      Appellate review is highly deferential to the sentencing judge because the
district court is in a superior position to find facts and apply § 3553(a) factors to
a particular defendant’s circumstances. Gall, 128 S. Ct. at 597-98 (citation
omitted).   “A discretionary sentence imposed within a properly calculated
[G]uidelines range is presumptively reasonable.” Campos-Maldonado, 2008 WL
2357364, at *1 (citations omitted); see also Gall, 128 S. Ct. at 597. In reviewing
a sentence for reasonableness, we examine whether the district court’s sentence
failed to “account for a factor that should have received significant weight,” gave
“significant weight to an irrelevant or improper factor,” or represented “a clear
error of judgment in balancing the sentencing factors.”           United States v.
Nikonova, 480 F.3d 371, 376 (5th Cir. 2007) (citation and internal quotation
marks omitted).
      In Gall, the Supreme Court expressly rejected “an appellate rule that
requires ‘extraordinary’ circumstances to justify a sentence outside the
Guidelines range.” 128 S. Ct. at 595. The Court held that if the district court
decides that an outside-Guidelines-range sentence is appropriate, the district
court should “consider the extent of the deviation and ensure that the
justification is sufficiently compelling to support the degree of the variance.” Id.
at 597.     But a reviewing court “may not apply a presumption of
unreasonableness.”     Id.   Even with below-Guidelines-range sentences, the
appellate court must give “requisite deference” to the district court’s decision, as



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required by the deferential abuse-of-discretion standard of review that applies
to all sentencing decisions. Id. at 597-98.
        Before turning to Williams’s case, we shall first discuss two of our post-
Gall decisions. First, in United States v. Rodriguez-Rodriguez, – F.3d – , 2008
WL 2332528, at *1 (5th Cir. 2008), we were faced with a similar remand from
the United States Supreme Court for consideration of a district court’s sentence
in light of Gall. In that case, although the district court had imposed a sentence
within the Guidelines range, the Government did not oppose the defendant’s
request to remand the case to the district court for re-sentencing. Id. at *1 n.1.
Nevertheless, we affirmed the district court’s judgment without remand, noting
that:
              [t]he relevant differences between this case and Gall
              are vast. Here we affirmed a sentence within the
              advisory guideline range which had been correctly
              calculated by the district court, a sentence properly
              subjected on appeal to a nonbinding presumption of
              reasonableness, and we did not fail to give due
              deference to the district court’s sentencing decision. By
              contrast, in Gall the court of appeals reversed the
              district court’s out-of-guideline sentence, erroneously
              presuming it to be unreasonable for that reason and
              failing to accord the district court’s sentence the
              deference it was due under the applicable abuse-of-
              discretion standard of review. Nothing of that kind
              happened here.
Id. at *3.
        Furthermore, in reviewing the record, we noted that the district court in
Rodriguez-Rodriguez did not fail to calculate the Guidelines range properly, did
not treat the Guidelines as mandatory, did not fail to consider the § 3553(a)
factors, and did not impose a sentence on clearly erroneous facts. Id. Even
assuming that prior aspects of Fifth Circuit precedent might have led a district
court to refrain from departing downward, the court observed that:


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             nothing in the record indicat[ed] that the district court
             in making its sentencing decision here felt in any way
             limited in the alternatives it desired to consider by this
             court’s sentencing jurisprudence, or in any way
             disagreed with the guidelines or felt that a sentence
             within the guideline range was too harsh, or had any
             inclination, for any reason, to impose a lesser sentence
             than it did.
Id. at *5. Accordingly, even in light of Gall, we found the sentence reasonable
and affirmed without remand. Id. at *6.
      Second, in Campos-Maldonado, a defendant argued that his sentence
should be vacated because the district court’s pre-Gall sentence might have
resulted from our prior jurisprudence that arguably restricted the district court’s
sentencing discretion in a manner incompatible with Gall. 2008 WL 2357364,
at *1. We refrained from vacating the district court’s judgment, however,
because “the record demonstrate[d] that the district court was aware of [the
defendant’s] argument for a non-guidelines sentence based on his particular
circumstances. The court nevertheless concluded that the Guidelines provided
the appropriate sentencing range.” Id. at *2. Moreover, we found that our
precedent did not preclude the district court from deviating from the Guidelines
range based on a conclusion that the sentence was excessive. Id.
      With all of this in mind, we turn to the reasonableness of Williams’s
sentence.2 Williams did not raise any procedural errors. Nor is there any
dispute that a proper Guidelines range was applied, so we presume that the
sentence was reasonable. See Campos-Maldonado, 2008 WL 2357364, at *1
(citation omitted). Williams complained that the substantive decision was
unreasonable in light of the fact that it would terminate the psychological


      2
          Williams also argued in his appeal that the application of a presumption of
reasonableness violated the Sixth Amendment. This argument was rejected by the Supreme
Court. Rita, 127 S. Ct. at 2462-68. That holding was reconfirmed in Gall, 128 S. Ct. at 597
(citation omitted).

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                                 No. 07-30140

treatment he was receiving. But the district court amply considered this fact
and reasonably concluded that it did not justify giving a sentence of probation
or home confinement in light of the § 3553(a) factors. See Rodriguez-Rodriguez,
2008 WL 2332528, at *4.
      Furthermore, there is no reason to remand the case for re-sentencing
because nothing in the record indicates that the district court felt constrained
in making its sentencing decision in any manner by this court’s prior sentencing
jurisprudence. See id. at *5. To the contrary, the district court gave serious
consideration to Williams’s argument, but ultimately disagreed that Williams
should receive probation or home confinement. The district court stated:
                   As reprehensible as I find the crime of child
            pornography, these cases are particularly difficult
            because many occasions it is perpetrated by people who
            have no other criminal history, and people who have
            otherwise, sometimes, lead lives that have value. So,
            these are the occasions, I guess, why they pay me the
            big bucks, because these are the hard ones. Some are
            not so hard. Some are really easy. These are not. But
            I have to go back, number one, to the fact that he was
            letting himself be placed in a position of supervision
            over children, which knowing what he was doing on the
            internet I find to be particularly frightening. I also
            have to go back to Dr. [Brennan’s] follow-up letter,
            which really is not very encouraging to me, and in
            particular, “He is only beginning to gain any insight
            into his behavior. His passivity and lack of initiative
            will be major hurdles for him to overcome. Until he can
            create a real—‘real life’—in quotations—in which he is
            involved and rewarded, it will remain all too easy for
            him to retreat back to fantasy fulfillment.[”] So
            although, [defense counsel], you make a compelling
            argument, the argument you make will propel me only
            to sentence him at the low end of the guideline range.
Accordingly, remand for re-sentencing is unnecessary.




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                              III. CONCLUSION
         For the reasons stated above, we AFFIRM the judgment of the district
court.




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