     Case: 11-50317     Document: 00511759746         Page: 1     Date Filed: 02/15/2012




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

                                                                            FILED
                                                                         February 15, 2012
                                     No. 11-50317
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

TIMOTHY ALLEN GERHOLDT,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:10-CR-209-1


Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Timothy Allen Gerholdt appeals the sentences imposed following his guilty
plea convictions for distribution of child pornography in violation of 18 U.S.C.
§ 2252(a)(2) and (b). He argues that the district court failed to state adequate
reasons for the sentences imposed and that the sentences are therefore
procedurally unreasonable. Next, he argues that the sentences are substantively
unreasonable because Congress has diverted from the goal of proportionality of
sentences in connection with the child pornography Guidelines, because United

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50317   Document: 00511759746      Page: 2   Date Filed: 02/15/2012

                                  No. 11-50317

States Sentencing Guidelines § 2G2.2 is not based on empirical evidence, and
because § 2G2.2 does not comply with the mandates of 18 U.S.C. § 3553(a). He
reasons that the circumstances of his case militate in favor of a below-guidelines
sentence. Although conceding that his argument regarding an empirical basis
is foreclosed by this court’s precedent, he raises the issue to preserve it for
further review.
      Because Gerholdt did not raise the specific ground of inadequate reasons
in the district court, his argument of procedural unreasonableness is reviewed
for plain error. See United States v. Mondragon-Santiago, 564 F.3d 357, 361
(5th Cir. 2009). To show plain error, he must show a forfeited error that is clear
or obvious and that affects his substantial rights. Puckett v. United States, 556
U.S. 129, 129 S. Ct. 1428-29 (2009). If he makes such a showing, this court has
the discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id. at 1429.
      The record in the instant case reflects that the district court listened to
and considered Gerholdt’s arguments for a below-guidelines sentence but found
the circumstances insufficient to warrant a lesser sentence in light of the
Guidelines and § 3553(a). See Rita v. United States, 551 U.S. 338, 358 (2007);
United States v. Rodriguez, 523 F.3d 519, 525-26 (5th Cir. 2008). The district
court’s failure to give additional reasons does not constitute plain error. In
addition, to show that the purported failure to give adequate reasons affected his
substantial rights, Gerholdt must show that it affected the outcome, i.e., that
further explanation would have resulted in a lesser sentence. See Mondragon-
Santiago, 564 F.3d at 364-65. He makes no such showing.
      Because Gerholdt’s sentences are within the applicable guidelines range,
they are “presumptively reasonable.” United States v. Alonzo, 435 F.3d 551, 554
(5th Cir. 2006); see also Rita, 551 U.S. at 347. We previously have rejected
substantive unreasonableness arguments similar to those raised by Gerholdt.
See United States v. Miller, 665 F.3d 114, 119-26 (5th Cir. 2011); United States

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  Case: 11-50317    Document: 00511759746     Page: 3   Date Filed: 02/15/2012

                                 No. 11-50317

v. Bacon, 646 F.3d 218, 222 n. 2 (5th Cir. 2011). As Gerholdt fails to rebut the
presumption of reasonableness afforded to his sentences, they are AFFIRMED.




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