     Case: 18-31148      Document: 00515026649         Page: 1    Date Filed: 07/09/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit
                                    No. 18-31148                            FILED
                                  Summary Calendar                       July 9, 2019
                                                                       Lyle W. Cayce
                                                                            Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MICHAEL HARPER,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:17-CR-148-1


Before REAVLEY, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Michael Harper appeals his within-guidelines sentence of 97 months of
imprisonment imposed following his guilty plea conviction of possession of
child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). He
asserts that his sentence is substantively unreasonable given the facts of the
case, contending that it is greater than necessary to satisfy the 18 U.S.C.
§ 3553(a) sentencing factors.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-31148   Document: 00515026649     Page: 2   Date Filed: 07/09/2019


                                  No. 18-31148

       We review an appellant’s claim that the imposed sentence is
substantively unreasonable for abuse of discretion. United States v. Scott, 654
F.3d 552, 555 (5th Cir. 2011).     A properly calculated sentence within the
guidelines range is presumptively reasonable. United States v. Cooks, 589 F.3d
173, 186 (5th Cir. 2009). This presumption is rebutted only if the appellant
demonstrates that the sentence does not account for a factor that should
receive significant weight, gives significant weight to an irrelevant or improper
factor, or represents a clear error of judgment in balancing sentencing factors.
Id.
       Harper contends that in weighing the sentencing factors, the district
court did not adequately consider the mitigating evidence presented regarding
his history and characteristics and the nature and circumstances of the offense,
specifically his history of substance abuse, prior military service, steady work
history, lack of criminal history, and the fact that he did not attempt to produce
or sell any pornographic images or attempt to have any inappropriate
associations or contact with any children. Harper’s argument fails. When the
district court considers mitigating evidence and assesses the § 3553(a) factors
in determining the sentence imposed, an appellant’s argument that the district
court committed a clear error of judgment in balancing sentencing factors due
to inadequate consideration of mitigating evidence does not rebut the
presumption that the within-guidelines sentence is reasonable. United States
v. Hernandez, 876 F.3d 161, 166-67 (5th Cir. 2017).
       At the sentencing hearing, the district court considered the mitigating
evidence in this case and assessed the § 3553(a) factors but ultimately
determined that the case did not warrant a sentence outside of the advisory
guidelines range. Therefore, Harper’s disagreement with the court’s weighing




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    Case: 18-31148     Document: 00515026649     Page: 3   Date Filed: 07/09/2019


                                  No. 18-31148

of the factors is insufficient to rebut the presumption that his within-guidelines
sentence is reasonable. The judgment of the district court is AFFIRMED.




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