                                                                    NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 18-1172
                                   ________________

                            UNITED STATES OF AMERICA

                                             v.

                             KIRK MICHAEL MASLANKA

                                                        Appellant
                                   ________________

                      Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                     (D.C. Criminal Action No. 5-17-cr-00149-001)
                     District Judge: Honorable Joseph F. Leeson, Jr.
                                   ________________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                   January 8, 2019

               Before: AMBRO, KRAUSE, and FUENTES, Circuit Judges

                            (Opinion filed: January 22, 2019)


                                   ________________

                                       OPINION*
                                   ________________

AMBRO, Circuit Judge




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Kirk Maslanka appeals his sentence of 121 months’ imprisonment after pleading

guilty to receipt and possession of child pornography. He claims the sentence was

substantively unreasonable. We disagree and thus affirm.

       I.     Background

       In September 2015 federal agents identified an Internet Protocol address

associated with Maslanka as having accessed and downloaded hardcore child

pornography from an online bulletin-board website. Based on the IP address, federal

agents obtained and executed a warrant to search Maslanka’s residence in Kutztown,

Pennsylvania, where they found electronic equipment containing, among other things,

more than 105 images and 56 videos of child pornography, including videos and

photographs depicting the rape of infant children. When confronted, Maslanka told the

agents he was not responsible for the child pornography and suggested on two separate

occasions that his sons might be to blame. Eventually Maslanka confessed to having

downloaded and viewed the child pornography and pled guilty in the District Court to

one count of receipt of it in violation of 18 U.S.C. § 2252(a)(2) and one count of its

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

       At sentencing the District Court established a base offense level of 22, with a net

enhancement of eight points—for an adjusted offense level of 30—based on (1) a two-

point enhancement under U.S.S.G. § 2G2.2(b)(2) because some images portrayed

children under the age of 12, (2) a four-point enhancement under U.S.S.G. § 2G2.2(b)(4)

because some images portrayed sadistic and masochistic conduct or other depictions of

violence, (3) a two-point enhancement under U.S.S.G. § 2G2.2(b)(6) because Maslanka’s

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crimes involved the use of a computer or interactive computer service, (4) a five-point

enhancement under U.S.S.G. § 2G2.2(b)(7)(D) because his collection involved more than

600 images, (5) a three-point reduction under U.S.S.G. § 3E1.1 for his timely acceptance

of responsibility, and (6) a two-point reduction under U.S.S.G. § 2G2.2(b)(1) because his

conduct was limited to receipt and possession of child pornography and did not involve

distribution. The advisory Guidelines range was 97 to 121 months’ imprisonment.

         As noted, the District Court entered a sentence of 121 months. It considered

Maslanka’s requests for a downward variance and rejected them. In particular, the Court

stated that a sentence at the top of the Guidelines range was appropriate because

Maslanka’s collection included more than 4,300 images, “vastly exceeding the 600

images required for an enhancement under the [G]uidelines,” (App. 86), some of which

depicted the rape of infants and other sadistic acts. It also noted Maslanka’s decision on

two occasions to blame his own sons for the child pornography as weighing against a

lower sentence.

         II.    Discussion1

         We review the substantive reasonableness of a sentence for abuse of discretion and

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

that particular defendant for the reasons the district court provided.” United States v.

Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc). As the party challenging the

sentence, the defendant “has the burden of demonstrating unreasonableness.” Id. at 567.




1
    We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
                                              3
       Maslanka makes three primary arguments. None is persuasive given our

deferential standard of review.

       First, he argues the District Court erred by failing to apply U.S.S.G. § 2G2.2 with

“great care” as contemplated by our decision in United States v. Grober, 624 F.3d 592,

607 (3d Cir. 2010). This argument leans heavily on the U.S. Sentencing Commission’s

criticism of the enhancements under U.S.S.G. § 2G2.2, which we discussed at some

length in Grober, 624 F.3d at 602–09. But that decision addressed whether a district

court can grant a downward variance from a Guidelines range based on its policy

disagreement with the enhancements in U.S.S.G. § 2G2.2; it does not restrain a district

court’s discretion to decline a defendant’s request for a downward variance based on the

Sentencing Commission’s criticisms of those enhancements. See id.; accord United

States v. Lopez–Reyes, 589 F.3d 667, 671 (3d Cir. 2009). Nor was the District Court

required to perform an independent analysis of the empirical or policy underpinnings of

U.S.S.G. § 2G2.2, a congressionally enacted Guideline. See Lopez–Reyes, 589 F.3d at

671. To the contrary, the Court needed to consider expressly the Guidelines range

calculated in the course of crafting an appropriate sentence under 18 U.S.C. § 3553(a).

See United States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006). That is what it did here.

       Second, Maslanka contends the sentence is unreasonable because it is higher than

sentences imposed on similarly situated defendants. This argument rests on a comparison

of his sentence to sentencing statistics compiled by the U.S. Sentencing Commission.

But this comparison does not carry the day. Although Maslanka’s sentence is near the

top end of the statistics compiled by the Commission, we have affirmed similar or longer

                                             4
prison terms for within-Guidelines sentences based on convictions similar to what we

have here. See, e.g., Greene, 468 F. App’x 173, 175 (3d Cir. 2012) (affirming 168-month

sentence based on guilty plea to one count of receiving child pornography); United States

v. Ziegler, No. 18-1033, 2019 WL 103790, at *3 (3d Cir. Jan. 4, 2019) (affirming 180-

month sentence based on guilty plea to possession and receipt of child pornography, the

same counts present here). We do not believe that Maslanka’s sentence is so far above

the sentences for similarly situated defendants as to conclude that “no reasonable

sentencing court would have imposed the same sentence on that particular defendant for

the reasons the district court provided.” Tomko, 562 F.3d at 568.

       Third, Maslanka argues that his sentence is contrary to § 3553’s “overarching

instruction” to district courts to impose a sentence no greater than necessary to achieve

the purpose of sentencing. It is true a sentence must be “sufficient, but not greater than

necessary, to comply with the four identified purposes of sentencing: just punishment,

deterrence, protection of the public, and rehabilitation.” Dean v. United States, 137 S. Ct.

1170, 1175 (2017) (quoting 18 U.S.C. § 3553(a)). But we cannot say the District Court

committed an abuse of discretion in ruling that a within-Guidelines sentence of 121

months struck the proper balance in this case. As noted, the Court expressly considered

the various mitigating circumstances raised by Maslanka at sentencing—including his

troubled personal history, his confession of guilt, and his prompt submission to mental

health treatment. It concluded, however, that the severity of the offense—including the

number of images, the presence of infant abuse and sadistic acts in some images, and

Maslanka’s attempts to pin the crimes on his sons—was such that a downward variance

                                             5
was not appropriate. For those same reasons the Court reached a sentence at the top of

the Guidelines range. Although we may not have chosen the same sentence in the first

instance, we cannot say the Court abused its discretion in weighing the § 3553 factors as

it did in this case.

                              *      *      *      *      *

       We hold Maslanka’s sentence was not substantively unreasonable and thus affirm.




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