     Case: 17-20730      Document: 00514726812         Page: 1    Date Filed: 11/16/2018




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


                                    No. 17-20730                                FILED
                                                                        November 16, 2018
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JAMES KELLY HILTON,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:17-CR-293-1


Before BENAVIDES, HIGGINSON, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       James Kelly Hilton appeals the 480-month, within-guidelines sentence
he received following his guilty plea conviction to one count of sexual
exploitation of a minor and one count of possession of child pornography,
challenging the procedural and substantive reasonableness of his sentence.
Hilton contends that the district court failed to adequately explain his sentence
by not addressing his arguments for a below-guideline sentence. He further


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 17-20730

urges that the district court gave insufficient weight to his minimal criminal
history and the mitigating evidence of his mental health.
        In reviewing sentences for reasonableness, we first determine whether
the district court committed a significant procedural error, including “failing
to adequately explain the chosen sentence.” Gall v. United States, 552 U.S. 38,
51 (2007).     We ordinarily review the substantive reasonableness of the
sentence for abuse of discretion, id., but where the defendant failed to preserve
an error in the district court, we review for plain error, United States v. Peltier,
505 F.3d 389, 391-92 (5th Cir. 2007).        Hilton did not object to either the
procedural or substantive reasonableness of his sentence in the district court.
Although Hilton acknowledges that we apply plain error review when a
defendant fails to object to the reasonableness of the sentence imposed in the
district court, he seeks to preserve the issue for further review. To show plain
error, Hilton must show a forfeited error that is clear or obvious and that
affects his substantial rights. Puckett v. United States, 556 U.S. 129, 135
(2009). If he makes such a showing, we have the discretion to correct the error
but only if it seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Id.; see also Rosales-Mireles v. United States, 138 S. Ct.
1897, 1905 (2018).
        At sentencing, the district court listened to Hilton’s arguments for a
lower sentence, including his immediate confession when confronted by
authorities, his mental health issues, and his acknowledgement of his need for
help.    The court reviewed relevant evidence, including a psychological
evaluation of Hilton and numerous victim impact statements. In imposing the
sentence, the district judge explained his concerns about the likelihood that
Hilton would repeat his actions and the lifelong harm he caused to his victims,
and expressed his hope that Hilton get the treatment he needed. Even if the



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                                  No. 17-20730

district court “might have said more,” the record makes clear that the court
considered “the evidence and arguments,” and its statement of reasons for the
sentence imposed was “legally sufficient.” Rita v. United States, 551 U.S. 338,
358-59 (2007); see also United States v. Mondragon-Santiago, 564 F.3d 357,
360 (5th Cir. 2009) (stating that the reasons must be sufficient to permit the
appellate court to conduct a meaningful review). Thus, Hilton has not shown
a clear or obvious error with respect to the adequacy of the reasons for the
sentence imposed. See Puckett, 556 U.S. at 135. Moreover, Hilton concedes he
cannot show that a more thorough explanation would have resulted in a lower
sentence, and therefore he cannot prevail with this claim on plain error review.
See Mondragon-Santiago, 564 F.3d at 364-65. He raises the argument solely
to preserve it for possible further review.
      Because the district court imposed a sentence within the properly
calculated guidelines range, Hilton’s sentence is entitled to a rebuttable
presumption of reasonableness. See United States v. Alonzo, 435 F.3d 551, 554
(5th Cir. 2006). The district court was aware of Hilton’s minimal criminal
history and mental health issues, as it reviewed his presentence report and
psychological evaluation before sentencing him. His dissatisfaction with the
district court’s weighing of the 18 U.S.C. § 3553(a) factors is insufficient to
rebut the presumption of reasonableness that attaches to a within-guidelines
sentence, as he has not shown that the district court failed to consider any
significant factor, gave undue weight to any improper factor, or clearly erred
in balancing the sentencing factors. See United States v. Cooks, 589 F.3d 173,
186 (5th Cir. 2009).
      The judgment of the district court is AFFIRMED.




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