                  United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 12-2847
                          ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                              Michael William Sherman

                        lllllllllllllllllllll Defendant - Appellant
                                        ____________

                      Appeal from United States District Court
                       for the District of Minnesota - St. Paul
                                   ____________

                           Submitted: November 27, 2012
                             Filed: December 4, 2012
                                   [Unpublished]
                                  ____________

Before MURPHY, ARNOLD, and SMITH, Circuit Judges.
                          ____________

PER CURIAM.

       Michael Sherman pleaded guilty to producing child pornography, in violation
of 18 U.S.C. § 2251(a) and (e). The presentence report calculated a Guidelines sentence
of 360 months in prison, the statutory maximum. The district court1 varied downward,
imposing a 300-month prison term.

      On appeal, Sherman argues that the sentence is substantively unreasonable
because the Guidelines, as applied to child pornography cases, lack an empirical basis
upon which to formulate an appropriate sentence under 18 U.S.C. § 3553(a). This
court has already rejected such an argument. See, e.g., United States v. Jones, 563
F.3d 725, 730 (8th Cir. 2009) (assuming sentencing court may disregard child-
pornography Guidelines on policy grounds does not mean court must disagree with
Guidelines, whether it reflects policy judgment of Congress or Commission’s
“characteristic” empirical approach).

      We conclude that the sentence is not unreasonable. See United States v. Moore,
581 F.3d 681, 684 (8th Cir. 2009) (per curiam) (where district court has sentenced
defendant below advisory Guidelines range, it is nearly inconceivable that court
abused its discretion in not varying downward further). Accordingly, we affirm.
                        ______________________________




      1
        The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.

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