                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-4000


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

MARK EDWARD SLAYTON,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:14-cr-00201-CCE-1)


Submitted:   September 29, 2015           Decided:   October 27, 2015


Before KING, DIAZ, and HARRIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mark A. Jones, BELL, DAVIS & PITT, PA, Winston-Salem, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Anand   P.   Ramaswamy,   Assistant   United States Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Mark      Edward     Slayton        appeals       from       his    78-month       sentence

imposed       pursuant       to    his        guilty       plea     to       accessing     child

pornography.        On appeal, he contends that his below-Guidelines

sentence was both procedurally and substantively unreasonable.

Specifically,       he    contends        that       the   district          court   failed     to

consider his individual circumstances, gave too much deference

to the Guidelines range determined by U.S. Sentencing Guidelines

Manual       § 2G2.2     (2013),        and     imposed        an    impermissibly         harsh

sentence.      We affirm.

     We review the district court’s sentence, “whether inside,

just outside, or significantly outside the Guidelines range,”

under    a    “deferential        abuse-of-discretion               standard.”          Gall    v.

United    States,      552    U.S.      38,     41    (2007).           In   conducting       this

review, we first ensure “that the district court committed no

significant procedural error, such as failing to calculate (or

improperly       calculating)           the     Guidelines          range,      treating       the

Guidelines as mandatory, failing to consider the [18 U.S.C.]

§ 3553(a) [2012] factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen

sentence.”       Id. at 51.         “When rendering a sentence, the district

court must make an individualized assessment based on the facts

presented,”      applying         the    “relevant         §   3553(a)        factors    to    the

specific circumstances of the case before it.”                               United States v.

                                                2
Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal quotation

marks and emphasis omitted).             The court must also “state in open

court the particular reasons supporting its chosen sentence” and

“set forth enough to satisfy” this court that it has “considered

the parties’ arguments and has a reasoned basis for exercising

[its]       own    legal   decisionmaking        authority.”        Id.     (internal

quotation marks omitted).

       If    the    sentence    is    free   from   procedural     error,    we   then

review it for substantive reasonableness.                   Gall, 552 U.S. at 51.

“Substantive reasonableness review entails taking into account

the ‘totality of the circumstances, including the extent of any

variance from the Guidelines range.’”                    United States v. Pauley,

511 F.3d 468, 473 (4th Cir. 2007) (quoting Gall, 552 U.S. at

51).    Even if we would have imposed a different sentence, “this

fact alone is ‘insufficient to justify reversal of the district

court.’”      Id. at 474 (quoting Gall, 552 U.S. at 51).                  We apply a

presumption on appeal that a sentence within or below a properly

calculated Guidelines range is substantively reasonable.                      United

States v. Louthian, 756 F.3d 295, 306 (4th Cir.), cert. denied,

135 S. Ct. 421 (2014).

       Here, the district court properly calculated and considered

the applicable Guidelines range and heard argument from counsel

and allocution from Slayton.                 In imposing sentence, the court

explicitly         considered   the    majority     of    the   statutory   factors,

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including the circumstances of the crime, deterrence and just

punishment.       The   court    was       particularly      concerned       about    the

seriousness of the crime and referred to the details in the

presentence report about the content of some videos found on

Slayton’s computer.         The court further stated that, while it

heard    and   considered   Slayton’s            arguments     for    a    probationary

sentence, the court was of the opinion that none of Slayton’s

circumstances     warranted      a    greater       variance    than       the   standard

variance the court imposed for such crimes. *                        Nonetheless, the

court acknowledged that Slayton’s arguments supported a sentence

at the low end of the variant Guidelines range.

     Contrary to Slayton’s arguments, the court considered his

individual      circumstances.             While    the   court      determined      that

Slayton’s      circumstances     were        generally     those      of    most   other

defendants charged with the same crime, this determination came

after     consideration     of       Slayton’s       specific        characteristics.

Moreover, while Slayton argued that the court overweighted the

Guidelines range and failed to consider whether the sentence was

greater    than   necessary,         the    court    explicitly       considered      the

sentencing factors and concluded that a variant sentence below

     * The district court calculated a downward variance based
upon its conclusion that the USSG § 2G2.2 overweighted the
number of images involved and the use of a computer. The court
stated that its regular practice was to calculate a variance
sentence based on a two-offense-level reduction in such cases.



                                             4
the Guidelines range was appropriate.                Moreover, the court noted

that the requested probationary sentence was not supported by

the statutory factors.           As such, we conclude that the court made

no procedural errors in imposing sentence.                 See United States v.

Helton, 782 F.3d 148, 154 (4th Cir. 2015) (“To require more

explanation      would     unnecessarily       intrude      upon     the     district

court’s primary and unique role in the sentencing process.”).

      Next, Slayton contends that his sentence was substantively

unreasonable because the district court relied too heavily on

the “flawed” child pornography guidelines.                  Slayton avers that

these particular guidelines lack any empirical basis and almost

always result in a range near the statutory maximum, even for

low   level    offenders.         We   have    previously     rejected        similar

arguments and held that courts should “give respectful attention

to Congress’s view that child pornography crimes are serious

offenses      deserving     serious       sanctions.”        United        States    v.

Strieper, 666 F.3d 288, 296 (4th Cir. 2012) (alterations and

internal quotation marks omitted); see also United States v.

Mondragon-Santiago,        564     F.3d     357,   366-67     (5th     Cir.        2009)

(recognizing that appellate courts are not required to discard

presumption      of       reasonableness       for       sentences         based      on

non-empirically-grounded          Guidelines       and    applying     presumption

accordingly); United States v. McLaughlin, 760 F.3d 699, 707-08

(7th Cir. 2014) (holding that sentencing court could consider

                                           5
whether       the      applicable           Guidelines         were     outdated          and

disproportionate         but       that     imposing      sentence      based        on   the

Guidelines did not render sentence substantively unreasonable).

Here, the court balanced the statutory factors, particularly the

seriousness of the crime, against Slayton’s lack of a criminal

record,    his        efforts       at      therapy      and    rehabilitation,           his

expression of remorse, his support system, and his positive work

history.        The court concluded that Slayton’s offense was too

serious    to    justify       a    lower    sentence.         “It    would     be    almost

unprecedented to credit a defendant’s challenge to a sentence as

substantively       unreasonable           when    the    district      court    actually

reduced    the        term     of     imprisonment        below       the     recommended

Guidelines range.”           Helton, 782 F.3d at 155.

       Accordingly, considering the totality of the circumstances,

Slayton has failed to rebut the presumption of reasonableness

applicable to his below-Guidelines sentence and has failed to

show   that     the    district          court’s    considerable        discretion        was

abused.       Thus,     we    affirm.         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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