     Case: 09-60369     Document: 00511019842          Page: 1    Date Filed: 02/03/2010




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

                                                  FILED
                                                                          February 3, 2010
                                     No. 09-60369
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

RODNEY RAY,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 2:08-CR-108-1


Before HIGGINBOTHAM, CLEMENT and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Rodney Ray appeals his sentence following his guilty plea conviction for
one count of possession of a computer containing images of child pornography,
in violation of 18 U.S.C. § 2252A(a)(5)(B) and 18 U.S.C. § 2256(8)(A). Ray
contends that the district court erred by failing to grant him a downward
departure, and, as such, that his within-guidelines sentence is unreasonable.
Ray specifically argues that the district court should have given minimal weight
to the guidelines range because U.S.S.G. § 2G2.2 it is not based on empirical

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-60369   Document: 00511019842 Page: 2        Date Filed: 02/03/2010
                                No. 09-60369

evidence and results in exponentially high sentences for persons convicted of
possessing child pornography.     He further argues that the other § 3553(a)
sentencing factors militated in favor of a below-guidelines sentence.
      In reviewing a sentence, this court should “consider the substantive
reasonableness of the sentence imposed under an abuse-of-discretion standard.”
Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Rodriguez, 523
F.3d 519, 525 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008). When the district
court imposes a sentence within a properly calculated guidelines range and gives
proper weight to the Guidelines and the § 3553(a) factors, this court gives “great
deference to that sentence and will infer that the judge has considered all the
factors for a fair sentence set forth in the Guidelines in light of the sentencing
considerations set out in § 3553(a).” United States v. Campos-Maldonado, 531
F.3d 337, 338 (5th Cir.) (internal quotation marks and citation omitted), cert.
denied, 129 S. Ct. 328 (2008). “A discretionary sentence imposed within a
properly calculated guidelines range is presumptively reasonable.” Campos-
Maldonado, 531 F.3d at 338.
      In this case, the district court considered Ray’s argument for a below-
guidelines sentence in conjunction with the § 3553(a) sentencing factors and
determined that they supported a within-guidelines sentence. The absence of
empirical data supporting § 2G2.2 and Ray’s disagreement with his within-
guidelines sentence are insufficient to rebut the presumption that his sentence
is reasonable. Campos-Maldonado, 531 F.3d at 338. Accordingly, the district
court did not err by not sentencing Ray to a below-guidelines sentence.
      AFFIRMED




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