                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 09-4596
                                     _____________

                           UNITED STATES OF AMERICA

                                            v.

                        RICHARD LEITENBERGER, Appellant

                                     _____________

                    On Appeal from the United States District Court
                            For the District of New Jersey
                         (D.C. Crim. No. 1-09-cr-00261-001)
                     District Judge: Honorable Robert B. Kugler
                                   _____________

                      Submitted under Third Circuit L.A.R. 34.1(a)
                                   March 21, 2011

        BEFORE: FUENTES, SMITH and VAN ANTWERPEN, Circuit Judges

                            (Opinion Filed: March 31, 2011)
                                   _____________

                              OPINION OF THE COURT
                                   _____________

FUENTES, Circuit Judge.

      Pursuant to a plea agreement, appellant Richard Leitenberger pleaded guilty to

possessing child pornography and was sentenced to 78 months imprisonment, five years

of supervised release, a $100 special assessment, and enrollment in the sex offender

registry. He appeals his sentence. For the reasons set forth below, we will affirm.

                                            1
                                              I.

       We write only for the parties and therefore discuss only the facts necessary to

explain our decision.

       In their Plea Agreement, Leitenberger and the Government stipulated that

Leitenberger's base offense level for his crime under the United States Sentencing

Guidelines was 18. They further stipulated that Leitenberger should receive a two-level

enhancement because the material he possessed involved pre-pubescent minors, a four-

level enhancement because the material depicted sadistic conduct and other depictions of

violence, a two-level enhancement for the use of a computer, a two-level enhancement

because the offense involved at least 10 but fewer than 150 images of child pornography,

and a three-level reduction for acceptance of responsibility. Calculated using these

stipulations, Leitenberger's total offense level was 25 and his criminal history category

was I, which corresponded to an advisory sentencing range of 57 to 71 months.

       The Probation Office calculated differently. Its Pre-Sentence Investigation Report

("PSR") rejected the stipulation as to the number of images and found that Leitenberger

possessed 675 images because his offense involved the purchase of nine videos, which

are equal to 75 images each according to Application Note 4(B)(ii) for § 2G2.2(b)(7) of

the United States Sentencing Guidelines. Accordingly, it applied all the enhancements of

the Plea Agreement, plus a five-level enhancement for the number of images. Its total

offense level equaled 28, which corresponded to an advisory sentencing range of 78 to 97

months.



                                             2
       At the sentencing hearing, the District Court agreed with the PSR's proposed

sentencing calculation. It then went on to apply the statutory sentencing factors set forth

at 18 U.S.C. § 3553(a) in order to determine whether it should vary from the Guidelines

in Leitenberger's case. The District Court observed that Leitenberger had no criminal

history, that he supported his family through good employment, and that there was

evidence that he was depressed. The District Court further noted that Leitenberger had

been taken advantage of by his father and brother. With regards to the specific nature of

his offense, the District Court pointed out that Leitenberger had an interest in child

pornography going back to 2004. After being solicited to buy child pornography from an

undercover agent, Leitenberger exchanged several e-mails with that agent in which he

explicitly asked for videos of underage girls. After recounting these facts, the District

Court took into account the seriousness of the offense, the need to promote respect for the

law, and the need to provide just punishment for the offense. The District Court then

explained that Congress has chosen to attack child pornography at the retail level by

making it a serious crime. Turning to the deterrent effect of Leitenberger's prosecution,

the District Court was uncertain about its specific effect on Leitenberger, but sanguine

about its general effects on others who might otherwise commit the crime. Finally, the

District Court remarked that the issue of unwarranted sentencing disparities was not

present in Leitenberger's case. For all of these reasons, the District Court declined to

vary from the advisory guidelines sentences and imposed a sentence at the bottom of the

advisory Guidelines range that included 78 months of imprisonment.



                                              3
                                             II.

                                             A.

       Leitenberger filed a timely appeal. The District Court had jurisdiction under 18

U.S.C. § 3231. We have jurisdiction over Leitenberger's challenge to his sentence under

18 U.S.C. § 3742(a).

       Our review of whether a district court abused its discretion in imposing a sentence

upon a criminal defendant is twofold. We first consider whether the sentencing court

committed any procedural errors “such as failing to calculate (or improperly calculating)

the Guidelines range, treating the Guidelines as mandatory, failing to consider the §

3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to

adequately explain the chosen sentence-including an explanation for any deviation from

the Guidelines range.” United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en

banc) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). If the district court

committed no procedural error, we consider the sentence's substantive reasonableness. A

sentence is substantively unreasonable only if “no reasonable sentencing court would

have imposed the same sentence on that particular defendant for the reasons the district

court provided.” Id. at 568.

                                             B.

       Leitenberger makes two arguments on appeal. First he argues that it was improper

to reject the stipulation in the Plea Agreement as to the number of images, while

simultaneously accepting that agreement's stipulations on the use of a computer and the



                                             4
masochistic nature of the images. Second, he says that the District Court failed to

thoroughly consider the §3553(a) factors. We find each of these arguments unpersuasive.

       The District Court was perfectly free to accept some stipulations while rejecting

others because a plea agreement is an agreement between the defendant and the

government prosecutor, not between the defendant and the court. See United States v.

Moscahlaidis, 868 F.2d 1357, 1361 (3d Cir. 1989) (declaring that there must be fairness

in plea agreements and observing that such agreements are "between an accused and a

prosecutor."). As such, a district court is not bound by the parties' stipulations. United

States v. Ketcham, 80 F.3d 789, 792 n.6 (3d Cir. 1996) ("A sentencing court is not bound

by factual stipulations in a plea agreement and has discretion to make factual findings

based on relevant information."). Indeed, this basic tenet of sentencing was made clear to

Leitenberger in the plea agreement, App. AA9 ("This agreement to stipulate . . . cannot

and does not bind the sentencing judge"), and at his plea hearing, App. AA25 (noting that

Leitenberger responded "Yes, I do sir" to the question "Now, I know there's a stipulation,

an agreement about this. But you need to understand that that's not binding on the court.

Do you understand that?"). The District Court did not abuse its discretion when it found

that Leitenberger possessed 675 images and used that fact as part of its sentencing

calculation. 1


1
 Leitenberger also argues for the first time on appeal that the enhancement for the
number of images violates Constitutional principles underlying the separation of powers
between our three branches of government. The District Court did not commit clear
error when it failed to address this argument without being prompted to do so by either of
the parties. See United States v. Lopez-Reyes, 589 F.3d 667, 671 (3d Cir. 2009)
(observing that District Courts are not required to independently scrutinize the policy and
                                              5
       Nor did it abuse its discretion when it accepted the stipulations that Leitenberger

used a computer to commit his crime and that the images he possessed depicted

sadomasochism or violence. Leitenberger admitted each of these things under oath and

cannot now argue that it was clear error for the District Court to find that each was

present. See United States v. Williams, 510 F.3d 416, 422 (3d Cir. 2007) ("When a

defendant stipulates to a point in a plea agreement, he is not in a position to make . . .

arguments [to the contrary].") (internal quotation marks omitted).

       Finally, despite Leitenberger's arguments to the contrary, the District Court gave

meaningful consideration to the appropriate factors under § 3553(a) and concluded that

none of them supported a downward variance. See United States v. Sevilla, 541 F.3d 226,

232 (3d Cir. 2008) (holding that courts must give meaningful consideration to the §

3553(a) factors). The District Court's explanation of his chosen sentence allows for

meaningful appellate review and, after carefully considering that explanation, we see no

abuse of discretion.

                                             III.

       For the foregoing reasons, we conclude that the District Court's sentence is within

the proper bounds of its discretion. We will affirm the judgment.




history of a Guideline when there is no disagreement about the Guideline among the
parties).
                                              6
