                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4745


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

FERNANDO RIVAS,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston.    Patrick Michael Duffy, Senior
District Judge. (2:11-cr-02290-PMD-1)


Submitted:   May 30, 2014                     Decided:   June 3, 2014


Before WILKINSON, KING, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Russell Warren Mace, III, THE MACE FIRM, Myrtle Beach, South
Carolina,   for  Appellant.   William   Nettles, United States
Attorney, M. Rhett DeHart, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Fernando Rivas appeals his convictions and 180-month

sentence     imposed       after     he    pled           guilty     to    producing          child

pornography, in violation of 18 U.S.C. § 2251(a) (2012), and

transporting       child       pornography,           in     violation       of     18    U.S.C.

§ 2252A(a)(1) (2012).            On appeal, Rivas argues that the district

court erred in denying his motion for an evidentiary hearing

pursuant to Franks v. Delaware, 438 U.S. 154 (1978), and that

his sentence is procedurally and substantively unreasonable.                                    We

affirm.

            Rivas argues that he was entitled to a Franks hearing

because     three       paragraphs        of        the     search     warrant       affidavit

contained false or misleading information and that, if those

paragraphs    had       been    omitted,        the        affidavit       would    have       been

insufficient to find probable cause.                          A defendant challenging

the validity of a search warrant is entitled to a Franks hearing

if   he   makes     a    preliminary           showing       that:        “(1)    the    warrant

affidavit contain[s] a ‘deliberate falsehood’ or statement made

with   ‘reckless        disregard    for       the        truth’    and    (2)     without      the

allegedly     false       statement,           the        warrant     affidavit          is     not

sufficient    to    support      a   finding          of    probable       cause.”        United

States v. Fisher, 711 F.3d 460, 468 (4th Cir. 2013) (quoting

Franks, 438 U.S. at 155-56); see United States v. Colkley, 899

F.2d 297, 300 (4th Cir. 1990) (defining substantial preliminary

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showing).          A defendant bears a heavy burden to establish the

need for a Franks hearing.                      United States v. Jeffus, 22 F.3d

554,   558     (4th     Cir.       1994).         We     review        de     novo      the     legal

determinations underlying a district court’s denial of a Franks

hearing and review its factual findings for clear error.                                        United

States v. Allen, 631 F.3d 164, 171 (4th Cir. 2011).

              Here,     Rivas        falls      short       of   making       the      substantial

preliminary showing that the challenged statements were false or

that   the    affiant       included       the       statements        with      the    intent     to

mislead      the    magistrate        judge.          See     Franks,       438     U.S.      155-56;

Fisher, 711 F.3d at 468.                  Furthermore, even assuming that Rivas

made the necessary showing, we agree with the district court

that   the     alleged        false       or     misleading        statements           were      not

essential to the probable cause determination.                                 See Fisher, 711

F.3d at 468.         Therefore, we conclude that the district court did

not err in denying Rivas’ request for a Franks hearing.

              Next,        Rivas     contends          that      his     sentence          is    both

procedurally         and     substantively            unreasonable.               We    review       a

sentence       for          reasonableness,             applying            “a         deferential

abuse-of-discretion standard.”                    Gall v. United States, 552 U.S.

38, 41 (2007).          In so doing, we first examine the sentence for

“significant         procedural       error”         ensuring,         among      other     things,

that   the    district        court       did    not    “improperly           calculat[e]          the

Guidelines         range,    .   .    .   fail[]       to     consider      the      [18      U.S.C.]

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§ 3553(a)     [(2012)]        factors,    .       .   .    or    fail[]      to    adequately

explain     the    chosen       sentence.”            Id.       at   51.          Next,     when

considering the substantive reasonableness of the sentence, we

“take into account the totality of the circumstances.”                               Id.; see

United States v. Yooho Weon, 722 F.3d 583, 590 (4th Cir. 2013)

(discussing appellate presumption of reasonableness).

            Rivas first challenges the district court’s decision

to apply a two-level enhancement because the offense involved

sexual contact.          See U.S. Sentencing Guidelines Manual (“USSG”)

§ 2G2.1(b)(2)(A) & cmt. n.2 (2012); see also 18 U.S.C. § 2246(3)

(2012) (defining sexual contact).                     We assume, without deciding,

that the district court erred in applying this enhancement but

conclude    that        any   such     procedural           error     is     harmless.        A

procedural sentencing error is harmless where this court has

“(1) knowledge that the district court would have reached the

same result even if it had decided the [G]uidelines issue the

other way, and (2) a determination that the sentence would be

reasonable even if the [G]uidelines issue had been decided in

the defendant’s favor.”              United States v. Savillon-Matute, 636

F.3d   119,       123    (4th    Cir.     2011)           (internal        quotation      marks

omitted); see United States v. McManus, 734 F.3d 315, 318 (4th

Cir.   2013)      (stating      that     procedural          “[s]entencing          error    is

harmless if the resulting sentence is not longer than that to



                                              4
which     the    defendant     would     otherwise           be     subject”)      (internal

quotation marks and brackets omitted).

             Here, Rivas was sentenced to 180 months’ imprisonment,

the statutory mandatory minimum sentence set forth in 18 U.S.C.

§ 2251(e)       (2012).        Thus,     even      if       the     district      court     had

sustained Rivas’ objection to the two-level enhancement, we can

conclude     with    confidence      that        the    district        court    would     have

imposed      the     same      mandatory          minimum         180-month        sentence.

Moreover,        Rivas’     substantial       downward        variance          sentence     is

reasonable        because    it   took       into       account         Rivas’    mitigating

arguments.        Accordingly, we conclude that any error on the part

of    the       district     court     in     applying            the     § 2G2.1(b)(2)(A)

enhancement is harmless.

             Next, Rivas contends that the district court erred by

imposing a two-level enhancement pursuant to USSG § 2G2.1(b)(3)

and a five-level enhancement pursuant to USSG § 2G2.2(b)(3)(B)

based on Rivas’ distribution of child pornography because there

was     no   evidence       presented       that       he    ever       distributed       child

pornography. *       Distribution is defined as “any act, including

possession with intent to distribute, production, transmission,

advertisement, and transportation, related to the transfer of

      *
        Rivas does not challenge any other aspect of the
enhancement in USSG § 2G2.2(b)(3)(B). See McManus, 734 F.3d at
319 (discussing proof required to trigger enhancement).



                                             5
material involving the sexual exploitation of a minor.”                                     USSG

§ 2G2.1 cmt. n.1; USSG § 2G2.2 cmt. n.1.                         Because Rivas admitted

at    the   plea    hearing      that   he     had    possessed,         transported,       and

produced child pornography, the district court did not err in

imposing the distribution enhancements.

              Further,          Rivas       argues        that        his      sentence      is

procedurally unreasonable because the court failed to properly

consider the 18 U.S.C. § 3553(a) factors.                         Rivas’ contention is

belied by the record.               The district court clearly stated that it

had    considered         the    § 3553(a)         factors       when       imposing    Rivas’

sentence      and    specifically        mentioned         the     seriousness         of   the

offense, the need to promote respect for the law, the need to

provide     just     punishment,        and    the     need      to     avoid    unwarranted

sentencing disparities.              We therefore conclude that the district

court did not commit procedural error in this regard.

              Finally,          Rivas    contends          that       his       sentence     is

substantively unreasonable because the district court did not

give sufficient weight to his arguments for a lower sentence.

However, after considering Rivas’ arguments about his childhood,

his    lack    of    criminal        history,       and    the     seriousness         of   the

offense,           the       district          court         determined            that       a

well-below-Guidelines            sentence      of    180     months      was    appropriate.

Therefore,     we        conclude    that     Rivas’      sentence       is    substantively

reasonable.

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           Accordingly, we affirm the district court’s judgment.

We   dispense   with   oral   argument   because    the   facts   and   legal

contentions     are   adequately   presented   in   the   materials     before

this court and argument would not aid the decisional process.



                                                                   AFFIRMED




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