                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-5124


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JORGE LUIS GARCIA,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:08-cr-00478-WO-1)


Submitted:   October 29, 2010             Decided:   November 19, 2010


Before GREGORY, SHEDD, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Jonathan M. Milling, MILLING LAW FIRM, LLC, Columbia, South
Carolina, for Appellant.     Anna Mills Wagoner, United States
Attorney, Michael A. DeFranco, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Pursuant to a plea agreement, Jorge Luis Garcia pled

guilty to possession of child pornography, in violation of 18

U.S.C.A. § 2252A(a)(6)(B), (b)(2) (West 2000 & Supp. 2010).                          The

district     court     sentenced       Garcia       to   seventy-eight        months’

imprisonment,    the    bottom     of    the    advisory     guidelines        range.

Garcia appeals his sentence, arguing that the district court

erred by denying his motion for a downward variance and that he

was   denied   effective    assistance         of   trial   counsel.          For    the

reasons that follow, we affirm.

           Garcia first argues that the district court abused its

discretion by denying his motion for a downward variance.                            We

review   the   district     court’s      sentence,       “whether    inside,        just

outside, or significantly outside the Guidelines range,” under a

“deferential    abuse-of-discretion           standard.”          Gall   v.    United

States, 552 U.S. 38, 41 (2007).               In conducting this review, we

first    determine     whether     the       district     court     committed       any

“significant procedural error, such as failing to calculate (or

improperly     calculating)      the     Guidelines       range,     treating        the

Guidelines as mandatory, failing to consider the [18 U.S.C.]

§ 3553(a) [2006] factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen

sentence.”     Id. at 51.     “When rendering a sentence, the district

court must make an individualized assessment based on the facts

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presented,”     applying       the   “relevant       §    3553(a)    factors     to   the

specific circumstances of the case before it.”                      United States v.

Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal quotation

marks and emphasis omitted).              The court must also “state in open

court the particular reasons supporting its chosen sentence” and

“set forth enough to satisfy” this court that it has “considered

the parties’ arguments and has a reasoned basis for exercising

[its]   own     legal    decisionmaking           authority.”           Id.    (internal

quotation marks omitted).

              If the sentence is free from procedural error, we then

review it for substantive reasonableness.                    Gall, 552 U.S. at 51.

“Substantive reasonableness review entails taking into account

the ‘totality of the circumstances, including the extent of any

variance from the Guidelines range.’”                     United States v. Pauley,

511 F.3d 468, 473 (4th Cir. 2007) (quoting Gall, 552 U.S. at

51).     Even    if     this    court     would      have    imposed      a   different

sentence, “this fact alone is ‘insufficient to justify reversal

of the district court.’”             Id. at 474 (quoting Gall, 552 U.S. at

51).

              Garcia does not dispute that his guidelines range was

properly      calculated.            He     argues        that    his    sentence     is

substantively     unreasonable        because,       in    refusing     to    downwardly

vary,   the    court    accepted      the       Sentencing       Commission’s    policy



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establishing       a    seventy-five-to-one          video-to-still         image    ratio

for child pornography.

            We     apply       an   appellate      presumption      that     a   sentence

imposed   within         the    properly      calculated        guidelines       range   is

reasonable.        United States v. Go, 517 F.3d 216, 218 (4th Cir.

2008); see Rita v. United States, 551 U.S. 338, 346-56 (2007)

(upholding appellate presumption of reasonableness for within-

guidelines sentence).               Garcia attempts to rebut the presumption

by challenging the video-to-still image ratio.

            Under       USSG    § 2G2.2      cmt.    n.4(b)(ii),      “[e]ach       video,

video-clip, movie, or similar recordings [of child pornography]

shall be considered to have 75 images.                          If the length of the

recording     is       substantially      more      than    5    minutes,    an     upward

departure may be warranted.”                  Garcia argues that the district

court   declined         to    exercise      its    legal    reasoning      by     blindly

relying on this provision, which he contends lacks supporting

empirical data.

            The        district      court    specifically        addressed       Garcia’s

arguments   concerning          the    seventy-five-to-one          ratio    and,    while

acknowledging its authority to disregard the policy, stated that

it did not have a disagreeement with the guidelines.                                 Under

these circumstances, we conclude that the district court did not

abuse its discretion and that Garcia’s sentence is reasonable.

Cf. United States v. Lopez-Reyes, 589 F.3d 667, 671 (3d Cir.

                                              4
2009) (holding that, where a court has discretion to sentence

below    the     guidelines       range    if     it    disagrees          with       Sentencing

Commission policy, the court does not have to impose a below-

guidelines sentence if it does not disagree), cert. denied, 130

S. Ct. 2362 (2010); United States. v. Roberson, 517 F.3d 990,

995 (8th Cir. 2008) (same).

               Garcia     also      asserts       that        his     attorney          provided

ineffective representation by failing to view the video images

that     were     found      on    his    computer.            Unless           an    attorney’s

ineffectiveness         is   conclusively         apparent       on       the    face       of   the

record,     ineffective           assistance       claims           are     generally            not

addressed on direct appeal.                United States v. Benton, 523 F.3d

424, 435 (4th Cir.), cert. denied, 129 S. Ct. 490 (2008); United

States     v.    Richardson,        195    F.3d        192,    198        (4th       Cir.    1999)

(providing standard and noting that ineffective assistance of

counsel claims generally should be raised by motion under 28

U.S.C.A. § 2255 (West Supp. 2010).                        The record in this case

falls short of this exacting standard.

               For these reasons, we affirm Garcia’s sentence.                                    We

dispense        with    oral      argument      because        the    facts          and     legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                                                        AFFIRMED

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