           Case: 12-11676   Date Filed: 03/25/2013   Page: 1 of 4

                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-11676
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:11-cr-20718-KMM-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

GUILLERMO D. MARTINEZ,


                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                            (March 25, 2013)

Before BARKETT, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
                Case: 12-11676      Date Filed: 03/25/2013      Page: 2 of 4

       Guillermo Martinez appeals his 78-month sentence, imposed after pleading

guilty to possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B)

and (b)(2). Martinez argues that his sentence was substantively unreasonable

because the district court did not grant him a downward variance from the

sentencing guidelines, indicating that the court insufficiently considered the need

to avoid unwarranted disparities among sentences imposed in similar situations, as

required by18 U.S.C. § 3553(a)(6). Because we find that the district court did not

abuse its discretion in determining that no such unwarranted disparity existed, we

affirm Martinez’s sentence.

       We review the reasonableness of a sentence imposed by a district court

under a deferential abuse of discretion standard. Gall v. United States, 552 U.S.

38, 41 (2007). Martinez’s sentence of 78 months was at the bottom of the 78 to

97-month range produced by an application of the U.S. Sentencing Guidelines, and

Martinez does not dispute that the court properly calculated his guideline range. 1

See United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008) (“[W]e ordinarily

expect a sentence within the Guidelines range to be reasonable.”) (internal


       1
         Although the Presentence Investigation Report (“PSI”) initially recommended a two-
level enhancement based on distribution of child pornography, which would have made the
Guideline range 97 to 120 months, the government had agreed not to seek such an enhancement
under Martinez’s plea agreement. While Martinez characterizes his 78 month sentence as a
slight downward departure from the sentencing range recommended in the PSI, a review of the
record indicates that the court appeared to follow the proposal to omit the distribution
enhancement, rendering the sentence of 78 months within the applicable Guideline range rather
than a downward departure.
                                              2
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quotation marks and alterations omitted). Rather, he maintains that the sentencing

court abused its discretion in denying his request for a downward variance because

there is an unwarranted disparity between his sentence and the sentences of

defendants in other cases involving child pornography offenses. The record,

however, belies this contention. The court expressly and thoroughly addressed the

possibility of a disparity, continuing the sentencing hearing to allow the parties

time to research and present arguments concerning whether following the

Guidelines in Martinez’s case would create an unwarranted sentencing disparity.

Sufficient factual circumstances distinguished Martinez’s case from other cases in

this circuit where downward variances were granted, including the very young age

of the children involved in the images in this case, the fact that Martinez had no

history of abuse or emotional or mental disorder, and the fact that Martinez was not

himself a minor.

       The weight to be accorded to any § 3553(a) factor is “a matter committed to

the sound discretion of the district court,” United States v. Clay, 483 F.3d 739,

743 (11th Cir. 2007), and under the facts presented here we cannot say that the

district court abused that discretion.2 Accordingly, we affirm the sentence as

reasonable.


       2
          Martinez’s argument that the district court should have found that the Guidelines
pertaining to child pornography offenses fail to properly reflect § 3553(a) considerations is also
unavailing. This Court has declined to conclude that the Guidelines governing child
                                                 3
                 Case: 12-11676       Date Filed: 03/25/2013        Page: 4 of 4

       AFFIRMED.




pornography are inherently flawed or disproportionately harsh, and it was not an abuse of
discretion for district court to “consider the [Martinez’s] offenses to be serious and to conclude
that [a] significant sentence[ was] warranted.” United States v. Wayerski, 624 F.3d 1342, 1355
(11th Cir. 2010); see also United States v. Pugh, 515 F.3d 1179, 1201 n.15 (11th Cir. 2008)
(distinguishing the Guidelines governing crack cocaine offenses from those governing the
possession of child pornography).


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