     Case: 11-41016     Document: 00511864630         Page: 1     Date Filed: 05/23/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           May 23, 2012
                                     No. 11-41016
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

GARY DANIEL BEEMAN,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:11-CR-467-1


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Gary Daniel Beeman appeals the 235-month guidelines sentence imposed
following his guilty plea conviction for receipt and distribution of child
pornography in violation of 18 U.S.C. § 2252(a)(2) and (b)(1). Beeman argues
that his sentence is procedurally unreasonable because it was based upon the
district court’s erroneous finding that he is a pedophile and because the district
court failed to explain why a sentence at the bottom of the recommended
guidelines range would not satisfy the goals of sentencing. Those unpreserved

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-41016   Document: 00511864630      Page: 2   Date Filed: 05/23/2012

                                  No. 11-41016

arguments are reviewed for plain error. See Puckett v. United States, 556 U.S.
129, 135 (2009).    Beeman also argues that his sentence is substantively
unreasonable because it is more than twice his previous 84-month sentence for
receiving child pornography, he only has that one prior conviction, he cooperated
with the Government, he recognized his need for treatment, and he is subject to
a lifetime of supervision. The substantive reasonableness of his sentence is
reviewed for abuse of discretion. See Gall v. United States, 552 U.S. 38, 51
(2007). Beeman’s final argument that the special condition of release compelling
him to submit to treatment that may include penile plethysmograph testing is
overbroad and constitutes an unnecessary deprivation of his liberty interests is
not ripe for review. See United States v. Carmichael, 343 F.3d 756, 761-62 (5th
Cir. 2003).
      Because Beeman did not object to the district court’s finding that his
history and characteristics were consistent with that of a pedophile, he cannot
demonstrate plain error with respect to that factual finding. United States v.
Chung, 261 F.3d 536, 539 (5th Cir. 2001). Moreover, “when a judge decides
simply to apply the Guidelines to a particular case, doing so will not necessarily
require lengthy explanation.” Rita v. United States, 551 U.S. 338, 346 (2007).
Beeman has not shown any plain error with respect to his argument that the
district court erred in failing to explain why a sentence at the bottom of the
recommended guidelines was not appropriate. See id. at 356.
      Because Beeman’s sentence fell within the applicable guidelines range, it
is “presumptively reasonable.” United States v. Alonzo, 435 F.3d 551, 554 (5th
Cir. 2006); see also Rita, 551 U.S. at 347. Beeman’s disagreement with the
district court’s balancing of the 18 U.S.C. § 3553(a) factors is insufficient to
establish error on the district court’s part. See United States v. Gomez-Herrera,
523 F.3d 554, 565-66 (5th Cir. 2008). As Beeman has not demonstrated that his
sentence is procedurally or substantively unreasonable, the judgment of the
district court is AFFIRMED.

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