                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                  ___________

                                      No. 11-3992
                                     ___________

                           UNITED STATES OF AMERICA

                                           v.

                                    JOHN GREENE,
                                             Appellant



                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                             (D. C. No. 3-10-cr-00041-001)
                    District Judge: Honorable Richard P. Conaboy



                      Submitted Under Third Circuit LAR 34.1(a)
                                  on April 24, 2012


                    Before: SLOVITER and ROTH, Circuit Judges
                            and POLLAK*, District Judge

                             (Opinion filed: May 21, 2012)




      *Honorable Judge Louis H. Pollak, Senior Judge of the United States District
Court of the Eastern District of Pennsylvania sat by designation. Judge Pollak died on
May 8, 2012; this opinion is filed by a quorum of the court pursuant to 28 U.S.C. § 46
and Third Circuit IOP 12.1(b).
                                      OPINION



ROTH, Circuit Judge:

       John Greene appeals the District Court’s October 19, 2011, judgment of sentence.

Greene argues that his sentence is substantively unreasonable because the District Court

abused its discretion by according undue weight to the child pornography Sentencing

Guidelines and by refusing to grant a downward variance based on his medical condition.

For the following reasons, we will affirm the sentence imposed by the District Court.

I. Background

       Following an investigation into child pornography, the Federal Bureau of

Investigation established that Greene had purchased access to child pornography

websites. On February 8, 2010, agents executed a search warrant at Greene’s residence

and seized computer-related materials which included videos and over 2,400 images of

child pornography. Greene admitted that he stored child pornography images which he

purchased online.

       On February 16, 2010, Greene was indicted on one count of receiving child

pornography in violation of 18 U.S.C. §2252(a)(2). On January 31, 2011, pursuant to a

plea agreement, Greene pled guilty to the charge.

       In the Pre-Sentence Report (PSR), the probation officer calculated a total offense

level of 35 and criminal history category of I, resulting in an advisory Guidelines range of

168 to 210 months. Both Greene and the government conceded that the advisory range

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was properly calculated. Greene submitted a memorandum requesting a downward

departure from the applicable Guidelines pursuant to U.S.S.G. § 5H1.4 and a variation

from the Guidelines pursuant to 18 U.S.C. § 3553(a) based on his age and medical

infirmities which include achondroplastic dwarfism, severe osteoporosis of both legs,

chronic pain, hypertension and depression.

       At the sentencing hearing on October 18, 2011, the District Court denied Greene’s

motion on the basis that a downward departure or variance would rarely be based on age

and medical conditions, especially in cases where, as here, the defendant suffered from

the illness while he committed the illicit acts. After considering the factors set forth in

U.S.C. § 3553(a), the District Court sentenced Greene to 168 months in prison, a life term

of supervised release and participation in a sex offender treatment program. The court

explained that it had considered Greene’s age and physical infirmity in imposing the

sentence at the lower end of the Guidelines range.

       Greene appealed.

II. Jurisdiction and Standard of Review

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

       We review the substantive reasonableness of a sentence for abuse of discretion and

will affirm “unless no reasonable sentencing court would have imposed the same

sentence on that particular defendant for the reasons the District Court provided.” United

States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc).



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III. Discussion

       Greene does not challenge the procedural reasonableness of the sentence but

argues that it is substantively unreasonable because the District Court gave undue weight

to the child pornography Sentencing Guidelines and failed to grant a downward variance

based on his medical conditions.

       First, Greene contends that the child pornography Guidelines under U.S.S.G. §

2G2.2 merit minimal deference because they are not supported by empirical data, or

nationwide experience.1 See United States v. Grober, 624 F.3d 592, 608 (3d Cir. 2010).

We emphasized that our decision in Grober concerning § 2G2.2 does not require that

district courts “will always recommend an unreasonable sentence, and district courts

must, of course, continue to consider the applicable Guidelines range.” Id. at 609. Thus,

our holding in Grober recognized that district courts have the discretion to consider

variances based on the view that the Guidelines are flawed but district courts are not

required to do so. Here, the District Court properly calculated the sentencing range,

treated the range as advisory, and extensively considered the factors under § 3553(a) in

imposing the sentence.

       Second, Greene argues that the District Court abused its discretion by failing to

reasonably apply the § 3553(a) factors to Greene’s particular circumstances and by only

cursorily stating that the Bureau of Prisons and Government would be able to manage his


1
  The government argues that plain error review is applicable because Greene failed to
raise this argument before the District Court. We affirm even under the abuse of
discretion standard, so we assume without deciding that Greene’s claim that he raised the
issue before the District Court is true.
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medical conditions. Contrary to Greene’s claims, the District Court noted that it had

carefully considered the memoranda submitted by both parties as well as counsel’s

arguments and explained at length the § 3553(a) factors that justified a sentence of 168

months. Because Greene suffered from his medical conditions while repeatedly engaging

in criminal conduct, the District Court rejected the arguments that his medical conditions

warranted a downward variance but took them into account when imposing a sentence at

the lower end of the sentencing range. Considering all the relevant factors, including

Greene’s past criminal record which involved abuse of children and the need to protect

the public, the District Court properly imposed the sentence for 168 months.

       We conclude that the sentence imposed by the District Court was well within its

discretion and decline to find the sentence substantively unreasonable.

IV. Conclusion

       For the foregoing reasons, we will affirm the judgment of sentence entered by the

District Court.




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