                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                    No. 10-4386
                                   _____________

                          UNITED STATES OF AMERICA

                                          v.

                               MICHAEL MAGUIRE,
                                                       Appellant
                                  _______________

            APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF NEW JERSEY
                  (D.C. Crim. Action No. 2-09-cr-00665-001)
                  District Judge: Honorable Faith S. Hochberg
                               _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   June 24 2011
                                 _______________

       Before: CHAGARES, JORDAN, and GREENAWAY, JR., Circuit Judges

                             (Opinion Filed July 12, 2011)
                                  _______________

                                     OPINION
                                 ________________

GREENAWAY, JR., Circuit Judge

      Appellant Michael Maguire (“Maguire”) appeals the District Court’s September

10, 2010 judgment of conviction, sentencing him to a term of 42 months of
imprisonment, followed by 4 years of supervised release with special conditions, and his

apportioned amount of restitution of $9,500. For the reasons that follow, we will affirm.

                                I.     BACKGROUND

       Because we write primarily for the benefit of the parties, we shall recount only the

essential facts. On September 3, 2009, Maguire was indicted on a one-count charge of

possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) and § 2. On

February 1, 2010, Maguire pled guilty, pursuant to a written plea agreement with the

government.1 On February 1, 2010, Magistrate Judge Shwartz took Maguire’s plea.

After concluding that Maguire’s guilty plea was “knowing, intelligent and voluntary,”

Magistrate Judge Shwartz submitted a Report and Recommendation (R&R) to the

District Court. The District Court adopted the R&R, and accepted Maguire’s guilty plea.

       On June 11, 2010, the Probation Office prepared a pre-sentence investigation

report (PSR), recommending a total offense level of 28 based on: (1) a base offense level

of 18; (2) a two-level enhancement, because the material involved prepubescent minors

and minors under the age of 12; (3) a four-level enhancement, because the offense

involved material that portrays sadistic or masochistic conduct; (4) a two-level

enhancement, because the offense involved the use of a computer; (5) a five-level

enhancement, because the offense involved the possession of 600 or more images of child

1
  The plea agreement did not stipulate to a Guidelines calculation. However, Maguire
agreed that: (1) the images he possessed involved prepubescent minors and minors under
the age of twelve years old; (2) the offense involved the use of a computer; and (3) the
offense involved 600 or more images of child pornography. Maguire also admitted to
these facts at his plea allocution.

                                             2
pornography; and (6) a three-level reduction for acceptance of responsibility. Maguire

had no criminal record before this conviction, resulting in a criminal history category I.

The advisory Guidelines range was 78 to 97 months of imprisonment.

       At sentencing on September 7, 2010, Maguire did not request any downward

departures. He did request that the District Court grant him a substantial variance from

the advisory Guidelines range and sentence him to one day of imprisonment and a ten-

year term of supervised release, instead of the PSR’s suggested sentencing Guidelines

range of 78 to 97 months of imprisonment. The District Court sentenced Maguire to 42

months of imprisonment. Maguire filed a timely notice of appeal.

               II.    JURISDICTION AND STANDARD OF REVIEW

       The District Court had subject matter jurisdiction, pursuant to 18 U.S.C. § 3231.

We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

       A district court’s sentencing procedure is reviewed for abuse of discretion. Gall v.

United States, 552 U.S. 38, 51-52 (2007). On abuse of discretion review, the court of

appeals gives due deference to a district court’s sentencing decision. Id. at 51. District

courts have discretion when sentencing and appellate review is limited to determining

whether the sentence imposed is reasonable. Id. Our appellate review proceeds in two

stages. It begins by ensuring that the district court committed no significant procedural

error, such as (1) failing to calculate (or improperly calculating) the U.S. Sentencing

Guidelines range; (2) treating the Guidelines as mandatory; (3) failing to consider the 18

U.S.C. § 3553(a) factors; and (4) selecting a sentence based on clearly erroneous facts, or

                                             3
failing to adequately explain the chosen sentence and to include an explanation for any

deviation from the guidelines range. United States v. Tomko, 562 F.3d 558, 567 (3d Cir.

2009) (en banc). If the district court’s sentence is procedurally sound, we will affirm it

unless no reasonable sentencing court would have imposed the same sentence on that

particular defendant for the reasons the district court provided. Id. at 568. Then, at

stage two, we consider a sentence’s substantive reasonableness. Our substantive review

requires us not to focus on one or two factors, but on the totality of the circumstances.

At both stages of our review, the party challenging the sentence has the burden of

demonstrating unreasonableness. Id. at 567. (Internal quotations marks, brackets, and

citations omitted).

                                    III.   ANALYSIS

       Maguire argues that his sentence is both procedurally flawed and substantively

unreasonable, because the District Court failed to properly consider the 18 U.S.C. §

3553(a) factors. Maguire specifically contends that the sentence was procedurally flawed

because the District Court failed to address his policy arguments related to § 2G2.2 and

failed to discuss what role the additional non-Guidelines information he provided,

including an expert report, played in the determination of the final sentence. Maguire

also argues that the sentence was substantively unreasonable because the District Court,

after failing to consider the § 3553(a) factors, imposed a sentence that was unnecessarily




                                              4
punitive under the facts and the nature and circumstances of his case.2

       After the Supreme Court’s decision in United States v. Booker, 543 U.S. 220

(2005), sentencing Guidelines are no longer deemed mandatory. Instead they are deemed

advisory. Since Booker, district courts are required to follow a three-step process in

determining the appropriate sentence in this advisory scheme. “Courts must continue to

calculate a defendant's Guidelines sentence precisely as they would have before Booker.

In doing so, they must formally rule[e] on the motions of both parties and stat[e] on the

record whether they are granting a departure and how that departure affects the

Guidelines calculation, and tak[e] into account [our] Circuit's pre-Booker case law, which

continues to have advisory force. Finally, they are required to exercise [their] discretion

by considering the relevant § 3553(a) factors, in setting the sentence they impose

regardless whether it varies from the sentence calculated under the Guidelines.” United

States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006) (internal quotation marks and citations

omitted). The sentencing courts are statutorily required to state their reasons for

imposing a sentence, although a comprehensive, detailed opinion is not required. Rita v.

United States, 551 U.S. 338, 356 (2007). The sentencing court must provide an

explanation that is sufficient to satisfy the appellate court that the district court

considered the parties’ arguments and had a reasoned basis for exercising its own

decision-making authority. Id.


2
  The pertinent § 3553(a) factor is the nature and circumstances of the offense and the
history and characteristics of the defendant.

                                                5
       Maguire contends that “in pronouncing the final sentence, the district court largely

limited its discussion to the two enhancements it declined to apply to the sentence. The

district court did not discuss how the academic reports, case law or the Sentencing

Commission’s own reports impacted the sentencing process.” (Appellant’s Reply Br.

11.)

       Although the District Court did not comment on the policy argument in its final

sentencing statement, the record indicates that the District Court acknowledged the

argument, entered into an extensive colloquy regarding the argument, and then ruled.

There is no requirement that the District Court provide an exegesis on all issues raised

before rendering sentence. There is no error.

       Maguire next contends that the District Court failed to properly consider all of the

§ 3553(a) factors. The District Court thoroughly considered the sentencing factors. The

District Court first discussed the nature and circumstances of the offense, and found that

Maguire’s conduct involved downloading and viewing child pornography and that it was

an “abhorrent, horrible, detestable crime,” and that the impact on the victims is

irreparable. (J.A., Vol. II, 84.) The District Court noted Maguire’s history and

characteristics, stating that it did not think Maguire would reoffend and acknowledging

that he was suffering as a result of this crime. Then, the District Court considered the

impact of Maguire’s actions on the parents of the victims, on Maguire’s own family, and

on the people victimized by child pornography. The District Court noted that in

determining a fair sentence, it must “weigh the bad and the good.” (Id. at 86.) Next, the

                                             6
District Court discussed deterrence, requiring Maguire to undergo treatment in a mental

health program and to have his computer equipment subject to unannounced

examinations. The District Court also ruled that Maguire could not have any collections

of films, slides, pictures, tapes, videotapes or any form of pictorial representation,

involving minor children of either sex.

       The District Court discussed the need to appropriately punish Maguire for his

crime, and inquired whether similar cases existed, and what the judgment was in those

cases, in its efforts to come up with a “fair and just sentence.” (J.A., Vol. II, 82.) The

District Court also addressed the need for restitution, and required that Maguire pay

$9,500 as a share of the $379,000 total restitution to be paid to one of the victims of his

child pornography offenses.

       Finally, the District Court addressed the importance of protecting the public, and

prohibited Maguire from having any contact with children of either sex under the age of

18, without the express approval of the probation officer. The District Court also

prohibited him from obtaining employment or doing volunteer work which involved

contact with minor children, without the express approval of the probation officer.

       The District Court expressed its concern as to what constituted fair punishment for

Maguire and that it tried to “look at the varied characteristics of him personally, at - - you

know, in terms of will he re-offend.” (Id. at 84.) The District Court stated specifically

that it had taken into account all of the § 3553(a) factors, including the nature and




                                              7
circumstances of the offense. (Id. at 82-90.) The District Court did not abuse its

discretion.

       The substantive component of a reasonableness review requires the appellate court

to take into account the totality of the circumstances. United States v. Lychock, 578 F.3d

214, 217 (3d Cir. 2009). Although the appellate court considers the extent of any

variance from the advisory Guidelines range, it must also give due deference to the

district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the

variance. Id. The substantive reasonableness of each sentence must be evaluated on its

own terms, based on the reasons that the district court provided, in light of the particular

facts and circumstances of that case. Tomko, 562 F.3d at 574. In examining the totality

of the circumstances, we determine whether a reasonable court would have applied the

same sentence as the District Court. See Lychock, 578 F.3d at 219 n.2.

       The District Court refused to add certain enhancements to Maguire’s sentencing

Guidelines calculation. The District Court’s actions in Maguire’s case are similar to

those in United States v. Grober, 624 F.3d 592 (3d Cir. 2010), where the district court

found that most of the enhancements were essentially inherent in the crime and applied in

nearly every case. Therefore, the District Court held that the sentencing range

recommended by § 2G2.2 would not be applied and could not be given deference. Id.

       Here, when the advisory sentencing range was initially calculated in the PSR, the

base offense level was 18. A 2-level enhancement, under § 2G2.2(b)(4) was added, along

with a 4-level enhancement, under § 2G2.2, a 2-level enhancement, under § 2G2.2(b)(6),

                                               8
and a 5-level enhancement, under § 2G2.2(b)(7)(D). Three levels were subtracted for

acceptance of responsibility. This added up to a total offense level of 28. Maguire had

no criminal history, which resulted in a criminal history category I. The Guidelines

advisory range for Maguire’s criminal history category and offense level was 78 to 97

months. The District Court rendered sentence – 42 months.

       The District Court declined to apply the two-level enhancement for use of a

computer under § 2G2.2(b)(6) or the five-level enhancement for the number of images

discovered on his computer under § 2G2.2(b)(7)(D), thus reducing Maguire’s total

offense level from 28 to 21, and reducing the Guidelines advisory range from 78 to 97

months, to 37 to 46 months. With regard to § 2G2.2(b)(6), the District Court stated that

“these crimes always involve a computer, and therefore it is almost de facto, not de jure,

but de facto become - - - that the use of the computer is synonymous with the crime.”

(J.A., Vol. II, 81.) Regarding the enhancement for the number of images, pursuant to §

2G2.2(b)(7)(D), the District Court stated “the number of images doesn’t reflect intent any

longer, because the click of the mouse can result in many more images than anybody ever

really perhaps wanted. Although he has them. But I don’t view that as making the crime

worse in this case, the number of images.” (Id.)

       The sentence imposed on Maguire was substantively reasonable. The District

Court provided a detailed and considered explanation for its decision to grant a variance,

as evidenced by the record, and reflected its consideration of the totality of Maguire’s

circumstances. In choosing not to add the enhancements, the District Court explained its

                                             9
intent to sentence Maguire only for the crime he committed and not add automatic

enhancements, which did not really reflect a specific crime, but which it viewed as being

generally applicable to all child pornography cases.3

                                 IV.    CONCLUSION

       The District Court properly calculated the Guidelines range, treated that range as

advisory, considered the § 3553(a) factors and did not base its sentence on clearly

erroneous facts. The District Court explained the reasons it was concerned about § 2G2.2

at sentencing, engaged in a sustained colloquy with both parties regarding § 2G2.2 policy

issues, and then explained why it selected the sentence it did. Because the District Court

undertook meaningful consideration of the § 3553(a) factors, we find no procedural error

in sentencing Maguire. The District Court considered the totality of the circumstances in

imposing its sentence. The sentence imposed by the District Court was substantively

reasonable. Accordingly, we will affirm the judgment of conviction of the District Court.




3
  Maguire argues that his ultimate sentence should have been lower because, given the
District Court’s refusal to apply certain enhancements, the total offense level was much
lower than had been anticipated. As such, a true variance, according to Maguire, would
have proceeded lower than the ultimate Guidelines range of 37 to 46 months. This
argument has no merit. The District Court pronounced a sentence within the appropriate
Guidelines range and in accord with Gunter. No further departure or variance need be
calculated or rendered.

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