                                                            NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             _____________

                                  No. 09-3705
                                 _____________

                      UNITED STATES OF AMERICA

                                       v.

                            TIMOTHY BRYNER,

                                               Appellant.
                                _______________

           APPEAL FROM THE UNITED STATES DISTRICT COURT
            FOR THE WESTERN DISTRICT OF PENNSYLVANIA
                      (D.C. Crim. Action No. 08-cr-263)
                 District Judge: Honorable Gustave Diamond
                              _______________

                  Submitted Under Third Circuit LAR 34.1(a)
                               July 15, 2010
                             _______________

       Before: RENDELL, JORDAN, and GREENAWAY, JR., Circuit Judges

                        Opinion Filed: August 25, 2010


                                _______________

                                 OPINION
                             ________________




GREENAWAY, JR., Circuit Judge
       Timothy Bryner pled guilty to a two count indictment, charging him with receiving

child pornography, in violation of 18 U.S.C. § 2252(a)(2); and possession of child

pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). The United States District Court

for the Western District of Pennsylvania sentenced him to 100 months’ imprisonment on

each count, to run concurrently, to be followed by two 15-year terms of supervised

release, also to run concurrently. The District Court also ordered that Bryner pay a

special assessment of $100 on each of the counts, totaling $200.

       Bryner challenges his sentence, arguing: (1) that the District Court erred when it

failed to consider his personal history and characteristics at the sentencing hearing; and

(2) that he is entitled to be sentenced anew because the District Court “never addressed”

his argument that the child pornography Sentencing Guidelines are not “empirically-

based” within the meaning of Kimbrough v. United States, 552 U.S. 85 (2007), and thus

are entitled to less deference under 18 U.S.C. § 3553(a). Bryner also argues that his

conviction and sentence for receiving child pornography violated the Double Jeopardy

Clause of the Fifth Amendment, because that charge was “based on the same images” as

was the charge of possession of child pornography. For the following reasons, we will

affirm the District Court’s Judgment.

                                     I.   Background

       We write solely for the benefit of the parties, and therefore recount only the

essential facts. A grand jury in the Western District of Pennsylvania returned a two-count



                                              2
indictment against Bryner on August 31, 2009. Count I charged Bryner with receiving

child pornography, in violation of 18 U.S.C. § 2252(a)(2), based on an exchange of child

pornography on December 21, 2007. Count II charged Bryner with possession of child

pornography, in violation of 18 U.S.C. § 2252(a)(4)(B), based on a much larger collection

of child pornography seized from his home on June 10, 2008.

       A presentence investigation report (“PSR”) was prepared on July 13, 2009, in

advance of sentencing, and was incorporated into the District Court’s “Memorandum

Order and Tentative Findings and Rulings” (“Order”), dated August 12, 2009. In the

PSR, the Probation Office calculated an advisory Sentencing Guidelines range of 168 to

210 months’ imprisonment, resulting from a total offense level of 35 and a criminal

history category of I.1 Bryner underwent a psychological evaluation conducted by Dr.

Robert F. Coufal, and also provided his attorney with information related to his history of

overcoming an alcohol addiction, his exposure to pornography at an early age, and his

physical ailments. Both the results of Bryner’s evaluation and his personal history




  1
   According to the PSR, the total offense levels for the two counts were grouped
together with the highest total offense level (Count I) applying. Bryner’s base total
offense level for Count I was 22. A two-level enhancement was added, under U.S.S.G. §
2G2.2(b)(2) for materials depicting a prepubescent minor or a minor under the age of 12.
(PSR ¶ 17). An additional 5 levels were added under U.S.S.G. § 2G2.2(b)(3)(B) because
the offense involved distribution for the receipt or expectation of receipt, of a thing of
value, but not for pecuniary gain. (Id. ¶ 18). The final enhancement of five levels was
added under U.S.S.G. § 2G2.2(b)(7)(D), for an offense involving 600 or more images.
The adjusted total offense level was 38. Three points were subtracted for acceptance of
responsibility. The final calculation of the total offense level was 35.

                                             3
information were included in a “Memorandum in Aid of Sentencing” (“Memorandum”),

submitted to the District Court by Bryner’s attorney and filed under seal. (App. Vol. III,

101-150).

       The Memorandum highlighted Bryner’s health conditions and noted that he is the

primary caretaker for his mentally handicapped son. (App. Vol. III, 101). In the

Memorandum, Bryner requested a sentence of 60 months, as opposed to a sentence within

the Sentencing Guidelines range of 168 to 210 months. (App. Vol. III, 102, 133).

       During a joint change of plea and sentencing hearing on August 31, 2009, Bryner

changed his plea to guilty. There was no plea agreement. (App. Vol. II, 83, 85). The

District Court adopted its August 12, 2009 Order as final, and its resulting total offense

level and criminal history category calculations were the same as those in the PSR.

       During the sentencing hearing, Bryner’s counsel argued for a downward variance,

and requested a sentence of 60 months for each of the counts in the indictment, with the

sentences to run concurrently. Bryner’s counsel posited that a five-year sentence would

be sufficient to serve the goals of 18 U.S.C. § 3553(a).

       The District Court noted that Bryner’s offense “was not as serious as some,” and

questioned the rationale of the five-point Guidelines enhancement for receipt of a thing of

value, and the five-point Guidelines enhancement for the number of images in Bryner’s

possession. As a result, the District Court granted a variance resulting in Bryner

receiving a sentence below Guidelines range. The District Court sentenced Bryner to 100



                                             4
months on each count, to run concurrently. (App. Vol. II, 92). Bryner filed a timely

appeal.

                             II.   STANDARD OF REVIEW 2

       In United States v. Booker, 543 U.S. 220, 261 (2005), the Supreme Court held that

appellate courts should insure that district courts analyze the § 3553(a)3 factors when

determining sentences for criminal enterprises. After Booker, appellate courts are now to

assess a district court’s exercise of discretion “with regard to § 3553(a).” Id. “Guided by

the § 3553(a) factors, Booker’s abuse of discretion standard directs appellate courts to

evaluate what motivated the district judge’s individualized sentencing decision.” Rita v.

United States, 551 U.S. 338, 364 (2007). “While reviewing courts may presume that a


  2
     The District Court had jurisdiction under 18 U.S.C. § 3231, which grants to the
“district courts of the United States ... original jurisdiction, exclusive of the courts of the
States, of all offenses against the laws of the United States.” We have jurisdiction
pursuant to 28 U.S.C. § 1291. This Court also has jurisdiction under 18 U.S.C. § 3742(a)
to review the appeal of a sentence imposed under the Sentencing Reform Act of 1984.
  3
    The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed - - (A)
to reflect the seriousness of the offense, to promote respect for the law, and to provide
just punishment for the offense; (B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant: and (D) to provide the
defendant with needed educational or vocational training, medical care, or other
correctional treatment in the most effective manner; (3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for - - (A) the applicable
category of offense committed by the applicable category of defendant as set forth in the
guidelines . . . ; (5) any pertinent policy statement . . . issued by the Sentencing
Commission . . . [that] is in effect on the date the defendant is sentenced; (6) the need to
avoid unwarranted sentence disparities among defendants with similar records who have
been found guilty of similar conduct; and (7) the need to provide restitution to any victims
of the offense.

                                               5
sentence within the advisory Guidelines is reasonable, appellate judges must still always

defer to the sentencing judge’s individualized sentencing determination.” Id. “It is not

the role of the appellate court to substitute its judgment for that of the sentencing court as

to the appropriateness of a particular sentence,” except to the extent specifically directed

by statute. Williams v. United States, 503 U.S. 193, 205 (1992) (quoting Solem v. Helm,

463 U.S. 277, 290 (1983)).

       In Rita, the Supreme Court explained that after giving both parties an opportunity

to argue for whatever sentence they deem appropriate, the district judge should then

consider all of the § 3553(a) factors to determine whether they support the sentence

requested by a party, making an individualized assessment based on the facts presented.

551 U.S. at 347-48.

       A district court’s “fail[ure] to consider the § 3553(a) factors” can create a

procedurally unreasonable sentence. United States v. Levinson, 543 F.3d 190, 195 (3d

Cir. 2008) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). We have stated that

“we are guided by the requirement that sentencing courts give ‘meaningful consideration’

to all of the factors in 18 U.S.C. § 3553(a).” See United States v. Olhovsky, 562 F.3d

530, 546 (3d Cir. 2009) (citing United States v. Cooper, 437 F.3d 324, 329 (3d Cir.

2006)). See also United States v. Grier, 475 F.3d 556, 571 (3d Cir. 2007) (where the

Third Circuit held that the touchstone of reasonableness is whether the record as a whole

reflects rational and meaningful consideration of those factors.)



                                              6
       A sentencing court may also consider the defendant’s statements at the sentencing

hearing in determining the sentence. See 18 U.S.C. § 3661 (“No limitation shall be

placed on the information concerning the background, character, and conduct of a person

convicted of an offense which a court of the United States may receive and consider for

the purpose of imposing an appropriate sentence.”); U.S.S.G. § 1B1.4 (“In determining

the sentence to impose within the guideline range, or whether a departure from the

guidelines is warranted, the court may consider, without limitation, any information

concerning background, character and conduct of the defendant, unless otherwise

prohibited by law.”); see also Fed. R. Crim. P. 32(i)(4)(A)(2) (requiring the sentencing

court to provide the defendant an opportunity to speak before imposing sentence).

Further, a sentencing court may impose a sentence outside of the Guidelines range, if it

believes the sentence is reasonable in light of the facts set forth in 18 U.S.C. § 3553(a).

                                     III.   ANALYSIS

       Initially, Bryner argues that the District Court failed to credit or consider the

psychological report submitted by Dr. Coufal in making its sentencing determination.

According to Dr. Coufal’s report, Bryner has a history of health problems, some of which

Dr. Coufal suggests may have “contributed to the underlying offense.” (App. Vol. III,

102-03). Bryner also contends that, according to Dr. Coufal’s evaluation, Bryner had a

“positive prognosis for overcoming his interest in child pornography,” and that he was at




                                              7
a low risk to recidivate because his “decision” to end his use of child pornography

“mirrors his resolve to quit drinking after his arrest for DUI.” 4 (Id., 101, 104).

       The District Court stated that it had read Bryner’s Memorandum, and had

considered his medical condition. However, the District Court did not believe Bryner’s

medical condition warranted a greater downward variance than it granted. (App. Vol. II,

97-99).

       “The sentencing judge is in a superior position to find facts and judge their import

under § 3553(a) in the individual case. The judge sees and hears the evidence, makes

credibility determinations, has full knowledge of the facts and gains insights not conveyed

by the record.” Gall, 552 U.S. at 50 (internal quotations and citations omitted).

       In his brief, Bryner makes a general statement that “Kimbrough authorizes” the

District Court to grant a downward variance, and though he gives no examples, he asserts

that “courts across the country are beginning to apply Kimbrough in the context of §

2G2.2.” (App. Br. at 34).

       Although Kimbrough was decided within the context of the dichotomy between

powder cocaine and crack cocaine sentencing, pursuant to the Sentencing Guidelines, it

stands for the broader proposition that a district court may exercise its discretion in

sentencing. This Court has held that:




  4
   According to Appellant’s brief, Bryner has been sober since 1985. (App. Vol. III,
103).

                                               8
       [A] district court is not required to engage in “independent analysis” of the
       empirical justifications and deliberative undertakings that led to a particular
       Guideline. (“[A judge] should not have to delve into the history of a
       guideline so that he can satisfy himself that the process that produced it was
       adequate to produce a good guideline.”)

United States v. Lopez-Reyes, 589 F.3d 667, 671 (3d Cir. 2009) (internal citations

omitted). We have further held that “Kimbrough does not force district or appellate

courts into a piece-by-piece analysis of the empirical grounding behind each part of the

sentencing guidelines.” Id. (quoting United States v. Duarte, 569 F.3d 528, 530 (5th Cir.

2009)). Thus, it is not the Court’s responsibility to disprove Bryner’s “empirical basis”

argument. Kimbrough does not assure the extent of the exercise of a court’s discretion in

sentencing, and does not assign a numerical value or level to a district judge’s

determination of the extent of a particular variance in sentencing.

       The record indicates that the District Court heard and considered argument from

defense counsel, and weighed the § 3553(a) factors in making its determination.

Specifically, the District Court stated, in pertinent part, that “[T]he sentences are assigned

and required under provisions of Title 18, United States Code, Section 3553(a) to reflect

the seriousness of the offense, the nature of the offense, the nature and character of the

defendant and should be designed to promote respect for the law, deterrence to others and

to the defendant from committing similar crimes, incapacitating the defendant from

committing particular crimes and to serve to punish, which I believe is always an incident

of any rational sentence, the defendant for committing the offense.” (App. Vol. II, 92).



                                              9
       Bryner contends that the District Court provided no more than a “cursory glance”

at the Memorandum, and that “the sum total of the district court’s discussion of the

Memorandum was a bare bones statement that it had read it.” (Reply Br. at 3). However,

this Court has also made it clear that “[t]here are no magic words that a district judge

must invoke when sentencing ... .” Cooper, 437 F.3d at 332. “A sentencing court need

not make findings as to each factor if the record otherwise makes clear that the court took

the factors into account.” United States v. Lessner, 498 F.3d 185, 203 (3d Cir. 2007).

See also Cooper, 437 F.3d at 329 (Sentencing courts need not discuss each of the §

3553(a) factors “if the record makes clear the court took the factors into account in

sentencing.”). The District Court did take the Memorandum into account, and repeatedly

assured Bryner, on the record, that it had done so. (App. Vol. II, 99).

       Bryner’s Double Jeopardy argument also fails. Bryner states that because Count I

was “based on the same images” as Count II, Double Jeopardy is implicated. The record

indicates otherwise. In the Appendix for Appellant, Volume II, page 30, the District

Court responds to an objection by Bryner’s counsel, related to the $200 special

assessment. Counsel states that the $200 is “essentially punishing” Bryner for the same

act - possession and receipt. However, the District Court noted specifically that Counts I

and II are two separate offenses, and that Bryner entered a plea of guilty to each of those

separate offenses.




                                             10
         Under the Fifth Amendment’s Double Jeopardy Clause, no person shall “be

subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const.

amend. V. We have held that the Double Jeopardy Clause bars conviction for both

receipt and possession of child pornography where the identical pornographic materials

supply the basis for both offenses. United States v. Miller, 527 F.3d 54, 71-72 (3d Cir.

2008).

         Here, Count I charged Bryner with receiving 82 images of child pornography, and

Count II charged him with possession of “in excess of 1000 images of child pornography”

6 months later. (App. Vol. II, 89-90). The images charged in Count II were found on an

external hard drive and differed from those in Count I. (PSR ¶ 8). Later, forensic study

of the hard drive confirmed that Bryner had been downloading child pornography from

1999 through June 2008. (App. Vol. II, 28). The child pornography found on his

external hard drive constituted the evidence for Count II of the Indictment, which was not

identical to the images charged in Count I. (App. Vol. II, 21).

         As the District Court properly noted - - Count I and Count II are two separate

offenses. Bryner acknowledged, during his plea allocution, that the time periods for each

count were different; and then entered a plea of guilty to each offense. (App. Vol. II, 77,

78). The Double Jeopardy Clause is not implicated here based on the facts before this

Court. Bryner’s claim must fail.




                                              11
                             IV.   Conclusion

For the foregoing reasons, we will affirm the Judgment of the District Court.




                                     12
