                                                                    [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________           FILED
                                                          U.S. COURT OF APPEALS
                                       No. 10-11522         ELEVENTH CIRCUIT
                                   Non-Argument Calendar     OCTOBER 28, 2010
                                 ________________________        JOHN LEY
                                                                  CLERK
                           D.C. Docket No. 1:09-cr-20915-KMM-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                                    Plaintiff-Appellee,


                                            versus

HENRY WADE FINLEY, JR.,
a.k.a. Henry Wade Finley,


                                            lllllllllllllllllllll   Defendant-Appellant.

                                ________________________

                          Appeal from the United States District Court
                              for the Southern District of Florida
                                ________________________

                                      (October 28, 2010)

Before EDMONDSON, MARTIN and KRAVITCH, Circuit Judges.

PER CURIAM:
        Henry Wade Finley appeals the sentence imposed following his guilty plea

to knowingly transporting child pornography, in violation of 18 U.S.C. § 2252(a),

and transferring obscene material to a minor, in violation of 18 U.S.C. § 1470.

        The charges against Finley arose from a single internet chat in which Finley

communicated with an undercover officer posing as the single mother of a ten-

year-old girl. During the conversation, Finley spoke of engaging in sex with

children, including his twelve-year-old daughter.1 He also shared fifteen images

of a young girl engaging in sexually explicit activities with adult men and

encouraged the officer to show the images to her daughter to gauge the girl’s

willingness to participate.2

        Following the online conversation, police were able to locate and arrest

Finley in Oklahoma. Although he admitted in his post-arrest statements to police

that he had sent the images to the undercover officer, he denied having any sexual

contact with a minor. Finley was charged with transporting child pornography and

transferring obscene material to a minor. He pleaded guilty without a written plea

agreement.

        The probation officer determined Finley’s advisory guideline range to be

        1
            In actuality, Finley has two adult children, neither of whom reported any sexual abuse.
        2
            The images were part of the “Vicky” series of child pornography involving a ten-year-
old girl.

                                                  2
188 to 235 months’ imprisonment.3 Finley faced a mandatory minimum sentence

of 5 years’ imprisonment and a statutory maximum of 20 years’ imprisonment for

the § 2252 offense, and a statutory maximum of ten years’ imprisonment for the

§ 1470 offense.

       Finley objected to the guideline calculations, arguing that he had no prior

convictions for sexual offenses and presented a low risk of recidivism. He also

submitted the results of a polygraph examination to show that he had truthfully

stated that he had never engaged in sexual contact with a minor. He argued that a

sentence between 63 and 78 months’ imprisonment would be sufficient but not

greater than necessary to meet the sentencing goals in 18 U.S.C. § 3553(a). At the

sentencing hearing, he explained that he suffered from bipolar disorder, depression

and post-traumatic stress disorder and that he was receiving therapy. He argued

that a sentence within the calculated guideline range was too harsh when he had

not produced or engaged in widespread distribution of the images. He argued that

§ 2G2.2 “impermissibly and illogically skews sentences for even ‘average’


       3
          The probation officer grouped the two offenses together under U.S.S.G. § 3D1.2(c) and
determined the base offense level under the higher guideline, in this case § 2G2.2. The probation
officer then added enhancements for (1) the age of the minor, § 2G2.2(b)(2); (2) the distribution
of images to a minor, § 2G2.2(b)(3)(E); (3) images of sadistic or masochistic conduct,
§ 2G2.2(b)(4); (4) the use of a computer, § 2G2.2(b)(6); and (5) the number of images involved,
§ 2G2.2(b)(7)(D). With a 3-level reduction for acceptance of responsibility, the total adjusted
offense level was 36.

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defendants to the upper end of the statutory range . . . thus blurring the distinctions

between the least and worst offenders.” See United States v. Beiermann, 599 F.

Supp. 2d 1087 (N.D. Iowa 2009)).

      The district court considered the guideline calculations, Finley’s arguments,

and the sentencing factors in 18 U.S.C. § 3553(a), and imposed a sentence of 188

months’ imprisonment. In so doing, the court noted the nature and severity of the

crimes as well as the continuing psychological harm to the victims. The court

stated that a sentence within the guideline range was sufficient to punish Finley

and deter future criminal conduct.

      On appeal, Finley argues that the district court imposed an unreasonable

sentence because it relied exclusively on the advisory guideline range as

calculated under § 2G2.2 and ignored the other sentencing factors listed in 18

U.S.C. § 3553(a). Finley contends that the sentence imposed does not comport

with the directives of § 3553(a) because he provided the court with

incontrovertible “scientific evidence” that he had never abused a child, has a low

risk of recidivism, and is a low risk to the community. Finley argues that his

background and the circumstances surrounding his arrest do not warrant such a

severe sentence, and he maintains that the court imposed a sentence greater than

necessary to achieve § 3553(a)’s objectives. In support, he cites several other

                                           4
cases involving § 2252 in which district courts sentenced defendants below the

guideline range.

      We review the substantive reasonableness of a sentence under a “deferential

abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 46, 51 (2007);

United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir. 2008). Finley bears the

burden of showing that his sentence is unreasonable. United States v. Thomas,

446 F.3d 1348, 1351 (11th Cir. 2006). A sentence is substantively reasonable if,

under the totality of the circumstances, it achieves the purposes of § 3553(a).

Pugh, 515 F.3d at 1191. Section 3553(a) provides that the sentence imposed must

reflect the seriousness of the offense, promote respect for the law, provide just

punishment for the offense, deter criminal conduct, protect the public from future

criminal conduct by the defendant, and provide the defendant with needed

educational or vocational training or medical care. 18 U.S.C. § 3553(a)(2).

Before imposing a sentence, the court must also consider the nature and

circumstances of the offense, the history and characteristics of the defendant, the

kinds of sentences available, the applicable guidelines range, the pertinent policy

statements of the Sentencing Commission, the need to avoid unwarranted

sentencing disparities, and the need to provide restitution to victims. 18 U.S.C.

§ 3553(a)(1), (3)-(7).

                                          5
      “The weight to be accorded any given § 3553(a) factor is a matter

committed to the sound discretion of the district court[,]” and “[w]e will not

substitute our judgment in weighing the relevant factors.” United States v.

Amedeo, 487 F.3d 823, 832 (11th Cir. 2007) (citation omitted). We have also

recognized that “[c]hild sex crimes are among the most egregious and despicable

of societal and criminal offenses.” United States v. Irey, 612 F.3d 1160, 1206

(11th Cir. 2010) (en banc).

      Here, the district court considered all of the arguments submitted, the

factors set forth in § 3553(a), the presentence investigation report, and the

victim-impact statements. In determining the ultimate sentence to impose, the

court also considered Finley’s background and his policy arguments against the

sentencing guideline range. But after considering Finley’s history and

characteristics, the court found that the seriousness of the offense and the

victim-impact statements required a lengthy sentence. In doing so, the court

appropriately considered the factors and achieved the purposes of sentencing set

forth in § 3553(a). Moreover, we note that the sentence imposed was at the low

end of the guideline range and well below the statutory maximum of 20 years’

imprisonment. See 18 U.S.C. § 2252(b)(1).

      Finally, the district court rejected Finley’s argument that the sentencing

                                          6
guideline applicable to his crimes, § 2G2.2, should carry little weight because it

lacked empirical evidence. Although under Kimbrough v. United States, 552 U.S.

85, 109-10 (2007), a district court may consider a lack of empirical basis as a

reason to exercise its discretion and impose a sentence below the guideline range,

it does not require the court to categorically disregard the guidelines. United

States v. Rodgers, 610 F.3d 975, 977-78 (7th Cir. 2010); see also Pugh, 515 F.3d

at 1201 n.15 (explaining that the child-pornography guidelines do not suffer from

the same deficiencies as the crack-cocaine guidelines addressed in Kimbrough).

Given the facts of this case, we cannot say the district court abused its discretion

by the manner in which it weighed the § 3553(a) factors. Finely’s sentence is

      AFFIRMED.




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