                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 23 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-50363

              Plaintiff - Appellee,              D.C. No. 5:08-cr-00218-VAP-1

  v.
                                                 MEMORANDUM *
DONALD STUART GILLESPIE, AKA
Donald Gillespie,

              Defendant - Appellant.



                   Appeal from the United States District Court
                       for the Central District of California
                   Virginia A. Phillips, District Judge, Presiding

                     Argued and Submitted December 7, 2011
                              Pasadena, California

Before: PREGERSON and PAEZ, Circuit Judges, and CONLON, District Judge.**


       Donald S. Gillespie (“Gillespie”) pled guilty to a single count of knowingly

possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). He was


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable Suzanne B. Conlon, District Judge for the United
States District Court for Northern Illinois, sitting by designation.
sentenced to a 120-month term of imprisonment. Gillespie appeals, arguing that

the district court committed procedural errors and imposed a substantively

unreasonable sentence. We affirm.

      Gillespie contends that the district court failed to remain mindful of the

Sentencing Guidelines range and provided an inadequate justification for the

upward variance of his sentence. The district court calculated the applicable

Sentencing Guidelines range, heard extensive argument from the parties, and

analyzed the 18 U.S.C. § 3553(a) factors. Gall v. United States, 552 U.S. 38, 49-

50 (2007); United States v. Carty, 520 F.3d 984, 991 (9th Cir. 2008) (en banc).

The record therefore reflects that the district court remained cognizant of the

Sentencing Guidelines throughout the sentencing proceeding. Gall, 552 U.S. at 50

n.6; Carty, 520 F.3d at 991. In considering the § 3553(a) factors, the district court

also sufficiently explained the basis for the variance between the Sentencing

Guidelines range and the imposed sentence. Gall, 552 U.S. at 51; Carty, 520 F.3d

at 992. Thus, there was no error.

      Gillespie next argues that the district court erroneously applied

enhancements for an offense involving more than 600 images and an offense




                                          2
involving images depicting sadistic or masochistic conduct.1 The government

demonstrated “a sufficient connection between the defendant and the contraband to

support the inference that the defendant exercised dominion and control over [it].”

United States v. Romm, 455 F.3d 990, 999 (9th Cir. 2006) (internal quotation

marks omitted) (alteration in original). Gillespie admitted that most of the

pornography in his possession qualified as child pornography. He also disclosed

that he usually obtained and traded child pornography over the internet. Gillespie

acknowledged that he viewed pornography, including child pornography, every

day, and three to four times per week in the months preceding the search. He also

admitted that he saved child pornography on compact discs (“CDs”), which he

produced himself by downloading images containing child pornography from the

internet and burning them onto CDs. Gillespie did not dispute that there were

1,202 images and eight videos on his computer and peripheral storage devices,

such as CDs. He likewise did not dispute that the child pornography images were

stored on six CDs. The United States Probation Office described the contents of

the video files and image files, some of which depicted anal penetration of



      1
               The government did not breach the Plea Agreement by arguing only
that the district court did not err in applying the enhancement for an offense
involving images depicting sadistic or masochistic conduct. See United States v.
Rodriguez-Castro, 641 F.3d 1189, 1192 (9th Cir. 2011).

                                          3
children. Gillespie’s admissions coupled with the evidence supported the inference

that he possessed more than 600 child pornographic images, some of which

depicted sadistic or masochistic conduct. See United States v. Rearden, 349 F.3d

608, 614-15 (9th Cir. 2003).

       Gillespie also contends that the district court failed to consider adequately

his post-offense rehabilitation and exaggerated the risk he posed to society. The

district court retained significant discretion in weighing the § 3553(a) factors, and

there is no evidence the district court erred in that analysis. The district court

acknowledged Gillespie’s age and the relevant post-offense evidence, including

Gillespie’s educational achievements, his own sobriety, and his operation of a

sober living facility. The district court, however, also enumerated numerous

aggravating factors, including Gillespie’s past molestation of his daughters, the age

of the victims, the number and nature of the images depicting child pornography,

and his lack of remorse or responsibility for the offense. The district court’s

consideration of the impending birth of Gillespie’s granddaughter was not

improper, particularly in light of Gillespie’s past molestation of his own young

daughters. Because the district court analyzed all of the § 3553(a) factors and

provided an adequate explanation for the variance, the sentence imposed by the




                                            4
district court was not substantively unreasonable. Gall, 552 U.S. at 51; Carty, 520

F.3d at 992.

      Gillespie next argues that the district court erred in denying his request to

offer the testimony of one of his daughters at the sentencing hearing. She was not

a victim of the offense for which Gillespie was convicted and there was no dispute

that he had molested his daughters. Moreover, Gillespie’s friends and family had

the opportunity to provide letters on his behalf to the district court, which the

district court considered prior to imposing the sentence. Under these

circumstances, the district court reasonably concluded that Gillespie’s daughter’s

testimony was not relevant to the sentencing determination.

      AFFIRMED.




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