                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 06-4885



UNITED STATES OF AMERICA,

                Plaintiff - Appellant,

          v.


JOHN HENRY SMITH,

                Defendant - Appellee.



Appeal from the United States District Court for the District of
South Carolina, at Columbia.     Matthew J. Perry, Jr., Senior
District Judge. (3:05-cr-01153-MJP)


Submitted:   April 22, 2008                 Decided:   April 23, 2008


Before WILLIAMS, Chief Judge, WILKINSON, Circuit Judge, and Irene
M. KEELEY, United States District Judge for the Northern District
of West Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


Reginald I. Lloyd, United States Attorney, Dean A. Eichelberger,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Columbia, South Carolina, for Appellant.      John F.
Hardaway, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     John Henry Smith, a sixty-four year old man with no prior

criminal record, pleaded guilty to one count of possession of child

pornography in violation of 18 U.S.C.A. § 2252A(a)(5)(B) (West 2000

& Supp. 2006).     Although Smith’s Guidelines range under the U.S.

Sentencing Guidelines called for 78-97 months imprisonment, the

district   court    imposed   a   variance   sentence   of   24    months

imprisonment, two years of supervised release, and a $10,000 fine.

The Government appeals and, for the reasons that follow, we affirm.



                                  I.

     On May 4, 2005, an undercover agent with the Federal Bureau of

Investigation (“FBI”) used a P2P program,1 Limewire, to download

images of child pornography from a remote computer.               Through

further investigation, the agent was able to identify Smith’s

computer as the source for the images. Acting on this information,


     1
      A peer-to-peer (or “P2P", or, rarely, "PtP") computer
network:
     [U]ses diverse connectivity between participants in a
     network and the cumulative bandwidth of network
     participants   rather than     conventional   centralized
     resources where a relatively low number of servers
     provide the core value to a service or application.
     Peer-to-peer networks are typically used for connecting
     nodes via largely ad hoc connections. Such networks are
     useful for many purposes. Sharing content files (see file
     sharing) containing audio, video, data or anything in
     digital format is very common, and realtime data, such as
     telephony traffic, is also passed using P2P technology.
Wikipedia, Peer-to-peer, http://en.wikipedia.org/wiki/Peer-to-peer
(last visited March 27, 2008).

                                    2
the FBI served a warrant on Smith’s residence in Columbia, South

Carolina, on July 20, 2005.    The search of Smith’s home yielded a

home computer with 1431 images and 262 movies depicting child

pornography. In addition, the search uncovered VHS tapes with over

1000 images of child pornography.        Several of the images recovered

from Smith’s home had file names suggesting violence.

     On November 2, 2005, a federal grand jury sitting in the

District of South Carolina indicted Smith for distribution of child

pornography in violation of 18 U.S.C.A. § 2252A(a)(1) (West 2000 &

Supp. 2006) and possession of child pornography in violation of 18

U.S.C.A. § 2252A(a)(5)(B). On April 18, 2006, Smith pleaded guilty

to Count II (the possession count).

     Prior to Smith’s sentencing, a probation officer prepared

Smith’s    Pre-Sentence    Report   (“PSR”)     using   the   Sentencing

Guidelines.    The PSR concluded that Smith’s criminal history

category was I.       The PSR ascertained Smith’s offense level as

follows:

               Item                     Offense Level         Guideline
Base offense level                  18                   § 2G2.2(a)(1)
Offense included material           +2                   § 2G2.2(b)(2)
involving a prepubescent
child or child under 12 years
of age
Offense involved materials          +4                   § 2G2.2(b)(4)
portraying sadistic or
masochistic conduct or other
depictions of violence


                                    3
Offense involved the use of a    +2                 § 2G2.2(b)(6)
computer or interactive
computer service for the
possession, transmission,
receipt, or distribution of
the material
Offense involved more than       +5                 § 2G2.2(b)(7)(D)
600 images of child
pornography
Acceptance of Responsibility     -3                 § 3E1.1(a)&(b)
Total Offense Level              28

     With an offense level of 28 and a criminal history category of

I, the PSR calculated Smith’s advisory Guidelines range as 78-97

months imprisonment.

     The district court conducted Smith’s sentencing hearing on

July 24, 2006.   Neither party objected to the PSR’s calculations,

but Smith argued that he was entitled to a downward variance to 24

months imprisonment.

     In support of this argument, Smith presented testimony from

his wife, his sister, his pastor, and Dr. Thomas Martin, a forensic

psychiatrist.    Smith’s family members and pastor testified to

Smith’s character and his important role in the community.     Dr.

Martin testified that Smith did not suffer from a major mental

illness; did not suffer from paraphilia; was not a pedophile; had

no inappropriate contact with any child; had a productive work

history; had no criminal history or alcohol or substance abuse; was

not a sexually violent predator; had a low risk of recidivism given



                                 4
his   age    and    lack    of    mental     illness;    and   would   benefit   from

counseling.

        In contrast, the Government argued that the Guidelines range

was a correct reflection of the seriousness of Smith’s offense,

noting that Smith had progressed from adult pornography to child

pornography and was viewed masturbating to child pornography when

federal agents executed a search on his home.                  The Government also

provided a letter from the mother of one of the young girls

featured     in    several       of   the   images   recovered    in   Smith’s   home

describing the effects of Smith’s conduct on her daughter.

        In sentencing Smith, the district court, adopting the PSR,

calculated        Smith’s    advisory       Guidelines   range   as    78-97   months

imprisonment. It then varied downward and imposed a sentence of 24

months imprisonment, two years of supervised release, and a $10,000

fine.       In providing a statement of reasons for the downward

variance, the district court began with the “truism that the actual

Sentencing Guidelines that are appropriate in this case is that of

a total offense level of 28 and a criminal history category of I.”

(J.A. at 84.)         It recognized that the “beginning point” for the

sentence was the Guidelines range of 78 months to 97 months, (J.A.

at 91), but that it was also required to rely on the factors

provided in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006) in

imposing a sentence.             (J.A. at 94.)




                                             5
     In   varying    downward,      the       district    court   relied    on    the

following facts: Smith was 64 years of age and had “avoided

violations of the law” up until “this point in his life”;                     Smith

“has not been accused of having violated or molested any person

under the age of 18”; Smith “does not suffer under any mental

illness”; there was an “absence of any risk that he will involve

himself in similar conduct in the future”; Smith was “involved in

a treatment program . . . aimed and directed at this type of

activity”; Smith had “lived an exemplary life to this point”; Smith

had a life full of “noteworthy activities”; and Smith had “strong

family ties.” (J.A. at 96-97.) The district court counterbalanced

this discussion by noting “that the offense charged is considered

by the Congress of the United States as a very serious offense.”

(J.A. at 96.)

     Reiterating     that   its     sentencing      decision      began    with   the

Guidelines   range   and    “also    considered          the   relevant   statutory

sentencing factors [of § 3553(a)],” the district court then entered

the aforementioned sentence of 24 months imprisonment.                     (J.A. at

97.) Judgment was entered August 1, 2006, and the Government noted

a timely appeal on August 18, 2006.               We possess jurisdiction to

hear the Government’s appeal by virtue of 18 U.S.C.A. § 3742(b)

(West 2000).




                                          6
                                     II.

     On appeal, the Government challenges the district court’s

decision to issue a variance sentence and the extent of the

variance.      We review all federal sentences, “whether inside, just

outside, or significantly outside the Guidelines range” under a

“deferential abuse-of-discretion standard.” Gall v. United States,

128 S. Ct. 586, 591 (2007).        In United States v. Booker, 543 U.S.

220 (2005), the United States Sentencing Guidelines were rendered

advisory in order to comply with the Sixth Amendment.               Although

advisory, however, it remains “clear that a district judge must

give serious consideration to the extent of any departure from the

Guidelines and must explain his conclusion that an unusually

lenient   or    an   unusually    harsh    sentence   is   appropriate   in   a

particular case with sufficient justifications.”            Gall, 128 S. Ct.

at 594.

     The Gall Court created a two-step process for appellate review

of sentencing decisions.         First, a reviewing court should “ensure

that the district court committed no significant procedural error.”

Gall, 128 S. Ct. at 597.           Significant procedural errors might

include failure to calculate a proper Guidelines range, or failure

to consider the § 3553(a) factors.               If the district court’s

decision was procedurally sound, “the appellate court should then

consider the substantive reasonableness of the sentence imposed

under an abuse-of-discretion standard” by looking to the “totality


                                       7
of the circumstances, including the extent of any variance from the

Guidelines range.”   Id.   If the “sentence is within the Guidelines

range, the appellate court may, but is not required to, apply a

presumption of reasonableness.”    Id.

     In reviewing sentences outside the Guidelines range, the

appellate court “may not apply a presumption of unreasonableness.”

Id. In addition, while an appellate court “may consider the extent

of the deviation,” it “must give due deference to the district

court’s decision that the § 3553(a) factors, on a whole, justify

the extent of the variance.”      Id.    Accordingly, the Gall Court

rejected (1) “an appellate rule that requires ‘extraordinary’

circumstances to justify a sentence outside the Guidelines range;”

and (2) “the use of a rigid mathematical formula that uses the

percentage of a departure as the standard for determining the

strength of the justifications required for a specific sentence.”

Id. at 595.

     In this case, the district court granted a downward variance,

sentencing Smith to 24 months imprisonment although his Guidelines

range was 78 months to 97 months.          Our review for abuse of

discretion first must consider whether the district court made any

procedural errors.   The answer is clearly no.    The district court

correctly ascertained the applicable offense level and Guidelines




                                  8
range and considered numerous factors listed in § 3553(a) in

imposing the sentence.2     Neither party contests otherwise.

     Thus, we must next engage in our substantive reasonableness

review.   While we cannot say we would have varied Smith’s sentence

to 24 months imprisonment, we also cannot say that the district

court abused its discretion in so doing.         In the wake of Gall, the

Government’s principal argument is that the district court failed

to take into account the seriousness with which Congress views

sexual crimes involving children.          The district court’s statement

of reasons, however, expressly acknowledged the seriousness of the

offense   charged   in   computing   the    sentence.   See   J.A.   at   96

(explaining that Congress considered Smith’s crime “a very serious

offense” and that the district court “was treating it as such”).

In addition, the district court noted during the sentencing hearing

that “Congress has indicated its abhorrence of the offense or

offenses relating to child pornography.”          (J.A. at 92.)

     The district court simply counterbalanced the seriousness of

the offense factor under § 3553(a) against its findings regarding

Smith’s personal characteristics, namely his age, lack of criminal

history, low risk of recidivism, and positive role in his family



     2
      And, although the district court did not enter a lengthy
statement of reasons, length is not a requirement for upholding a
sentence. See Rita v. United States, 127 S. Ct. 2456, 2469 (2007)
(noting that “where . . . the record makes clear that the
sentencing judge considered the evidence and arguments, we do not
believe the law requires the judge to write more extensively”).

                                     9
and his community. In particular, the district court stressed that

defendant had no inappropriate contact with any child. Such an

approach is consistent with the Gall Court’s admonition that

district courts should “consider every convicted person as an

individual and every case as a unique study in the human failings

that sometimes mitigate, sometimes magnify, the crime and the

punishment to ensue.”   Gall, 128 S. Ct. at 598 (internal quotation

marks omitted).

     In the circumstances of this case, where the district court

took care to weigh the factors enunciated in § 3553(a), and, ever

mindful of our “deferential abuse-of-discretion” standard, Gall,

128 S. Ct. at 591, we therefore affirm Smith’s sentence even though

we “might reasonably have concluded that a different sentence was

appropriate,” id. at 597.    See also United States v. Martin, ---

F.3d ----, 2008 WL 748104 at *5 (1st Cir. 2008) (“[B]ecause we

cannot   desultorily   substitute    our   judgment   for   that   of   the

sentencing court, it is not a basis for reversal that we, if

sitting as a court of first instance, would have sentenced the

defendant differently.”).



                                III.

     For the foregoing reasons, the judgment of the district court

is

                                                               AFFIRMED.


                                    10
