                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-4636


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

LINDSEY DALE BOWLING,

                Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber, Senior
District Judge. (1:14-cr-00151-1)


Submitted:   May 13, 2016                 Decided:   June 10, 2016


Before KEENAN, DIAZ, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Christian M. Capece, Federal Public Defender, Lex A. Coleman,
Assistant Federal Public Defender, Jonathan D. Byrne, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for
Appellant. Carol A. Casto, Acting United States Attorney,
Larry R. Ellis, Lisa G. Johnston, Assistant United States
Attorneys, Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Lindsey        Dale       Bowling        appeals           from      his      97-month,

within-Guidelines sentence imposed pursuant to his guilty plea

to possession of child pornography.                     On appeal, he asserts that

his sentence is both procedurally and substantively unreasonable

because    the    district          court   allegedly            treated    the     Sentencing

Guidelines      as     mandatory,       resulting           in   unwarranted        sentencing

disparities.         We affirm.

       We review a sentence for reasonableness under a deferential

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

38, 51 (2007); United States v. Berry, 814 F.3d 192, 194-95 (4th

Cir.    2016).          In    determining           procedural       reasonableness,          we

consider,       among       other     factors,        whether       the     district      court

adequately analyzed the 18 U.S.C. § 3553(a) (2012) factors and

sufficiently explained the selected sentence.                             Gall, 552 U.S. at

51.    When a district court has treated the Guidelines range as

mandatory, the sentence is procedurally unreasonable and subject

to vacatur.       See United States v. Mendoza-Mendoza, 597 F.3d 212,

220 (4th Cir. 2010) (remanding when “left only to speculate as

to    whether    the       sentence    .    .   .     was    imposed       as   a   matter    of

obligation or as an exercise of judgment”).

       Bowling contends that, by its purported refusal to consider

his    request       for     a   downward           variance       from     the     Sentencing

Guidelines,          the     district       court           essentially         treated      the

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Guidelines       as    mandatory.        We    disagree.            The   district     court

stated that it was “not bound by” the Guidelines, but would

continue       to     afford    the    child       pornography        Guidelines,       U.S.

Sentencing Guidelines Manual § 2G2.2 (2014), due consideration

until either Congress or the Sentencing Commission changed them.

The    district       court     did    not    state         that    its   discretion    was

limited, or that it wished to impose a different sentence but

was unable to do so.             Rather, the district court considered the

§ 3553(a) factors as well as Bowling’s request for a variance

and, after concluding that this was “one of the most egregious

instances that’s ever come before me as a judge,” determined

that       a   sentence    at    the    top       of    the    Guidelines     range     was

appropriate. *        Accordingly, we conclude that the court’s refusal

to vary was not based upon a misunderstanding as to the advisory

nature of the Guidelines and that the sentence was procedurally

reasonable.

       Bowling next asserts that his sentence was substantively

unreasonable          because,        contrary         to     the     district   court’s

statements, Bowling’s case was not one of the most severe child

pornography cases in the Southern District of West Virginia.

       *Given the district court’s conclusion regarding the
seriousness of Bowling’s     conduct, we also reject Bowling’s
argument   that  the   sentence  here  created a   procedurally
unreasonable disparity in child pornography sentences in the
Southern District of West Virginia.



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“Any   sentence      that    is    within    or   below   a     properly    calculated

Guidelines    range     is    presumptively        [substantively]         reasonable.

Such a presumption can only be rebutted by showing that the

sentence is unreasonable when measured against the 18 U.S.C. §

3553(a) factors.”           United States v. Louthian, 756 F.3d 295, 306

(4th Cir. 2014).            Upon review, we conclude that the within-

Guidelines sentence was not unreasonable when measured against

the    §   3553(a)    factors       and     therefore     was    not   substantively

unreasonable.

       Accordingly,     we    affirm      Bowling’s     sentence.       We    dispense

with oral argument because the facts and legal contentions are

adequately    presented       in    the     materials     before    this    court   and

argument would not aid the decisional process.

                                                                              AFFIRMED




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