                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 17-2062
                                   ________________

                            UNITED STATES OF AMERICA

                                             v.

                                 MICHAEL DERENTZ,
                                             Appellant

                                   ________________

                       On Appeal from the United States District
                      Court for the Eastern District of Pennsylvania
                        (D.C. Criminal No. 2-15-cr-00418-001)
                       District Judge: Honorable Cynthia M. Rufe
                                   ________________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  February 9, 2018

            Before: CHAGARES, SCIRICA, and RENDELL, Circuit Judges

                                (Filed: February 14, 2018)

                                   ________________

                                       OPINION *
                                   ________________




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
SCIRICA, Circuit Judge

       Michael Derentz pleaded guilty to possession and distribution of child

pornography after more than 566 images and 108 videos were found on his electronic

devices. He now appeals the resulting aggregate sentence of 151 months’ imprisonment,

raising four challenges. Specifically, he contends the trial court erred by (1) treating the

Sentencing Guidelines as mandatory, (2) applying a two-level enhancement for an

offense involving distribution of child pornography, (3) refusing to vary from the

Guidelines range, resulting in an unduly harsh sentence, and (4) giving inadequate

consideration to the required factors under 18 U.S.C. § 3553(a). Because the sentence is

procedurally sound and substantively reasonable, we will affirm.

                                              I.

       Michael Derentz is a former schoolteacher who retired in 2010. On September 22,

2014, a Delaware County detective identified a computer sharing a video depicting child

pornography via the eDonkey2000 file-sharing network. Derentz’s wife was identified as

the subscriber for the computer’s particular internet protocol (IP) address. Upon

execution of a state search warrant, twenty videos of child pornography were discovered,

and two laptop computers and an external hard drive were seized. Derentz claimed sole

ownership and use of those devices. A subsequent forensic examination by Homeland

Security Investigations revealed more than 566 images and 108 videos from the devices,

depicting child pornography, with an additional 11,715 images and videos depicting

prepubescent children nude or partially clothed.

       Derentz pleaded guilty to one count of distribution of child pornography, in
                                              2
violation of 18 U.S.C. § 2252(a)(2), and one count of possession of child pornography, in

violation of 18 U.S.C. § 2252(a)(4)(B), on February 29, 2016. 1

         Neither defense counsel nor the government objected to the contents of the PSR

before or during sentencing, and defense counsel did not submit a sentencing

memorandum to the trial court. As calculated in the PSR, Derentz’s base offense level

was 22 under U.S.S.G. § 2G2.2. The base offense level was subject to several

enhancements based on specific offense characteristics, including a two-level

enhancement for distribution of child pornography under U.S.S.G. § 2G2.2(b)(3).

Derentz’s total offense level, after application of all enhancements and reductions, was

34, yielding a Guidelines range of 151 to 188 months’ imprisonment. Following the

presentation of two character witnesses, argument from counsel, and Derentz’s

allocution, the trial court imposed a term of 151 months’ imprisonment on Count 1 and

120 months on Count 2, to run concurrently.

                                             II.

         The trial court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction

under 18 U.S.C. § 3742 and 28 U.S.C. § 1291.

         We review a trial court’s sentencing decision for abuse of discretion. See United

States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc). First, we must “ensure that

the district court committed no significant procedural error, such as failing to calculate

(or improperly calculating) the Guidelines range, treating the Guidelines as mandatory,

[or] failing to consider the § 3553(a) factors.” Gall v. United States, 552 U.S. 38, 51

1
    The minimum term of imprisonment on Count 1 is five years.
                                              3
(2007). 2 Second, we “consider the substantive reasonableness of the sentence imposed.”

Id. “[I]f the district court’s sentence is procedurally sound, we will affirm it unless no

reasonable sentencing court would have imposed the same sentence on that particular

defendant for the reasons the district court provided.” Tomko, 562 F.3d at 568.

                                             III.

       As noted, Derentz argues the trial court incorrectly (1) treated the Guidelines as

mandatory, (2) applied a two-level sentencing enhancement for distribution, (3) refused

to vary from the Guidelines range, and (4) overlooked the 18 U.S.C. § 3553(a) factors in

determining a sentence. We conclude his arguments are meritless.

       First, Derentz contends that the trial court treated the Sentencing Guidelines as

mandatory. See Gall, 552 U.S. at 51 (holding it is procedural error to treat the Guidelines

as mandatory). His assertion is belied by the trial judge’s statements during Derentz’s

sentencing hearing:

       There are some courts that don’t believe that the very high and hard
       sentences deter others, or deter anything, that they’re overly harsh, that
       robbers have far less of a guideline range than this. But this is what
       Congress has done, and this is what the law has said is allowed. And until
       it’s changed, that’s my guide. And as to judges imposing their own
       personal positions, I refuse to do that, because it would not be right. Then
       there’s uneven justice. And this has to be consistent.

App. 65 (emphasis added).

2
 “[W]hen a party wishes to take an appeal based on a procedural error at sentencing—
such as the court’s failure to meaningfully consider that party’s arguments or to explain
one or more aspects of the sentence imposed—that party must object to the procedural
error complained of after sentence is imposed in order to avoid plain error review on
appeal.” United States v. Flores-Mejia, 759 F.3d 253, 255 (3d Cir. 2014) (en banc). We
note that Derentz did not raise any objections below. But, because we conclude that his
arguments fail under any standard, we need not determine if plain error review applies.
                                              4
       The trial judge stated that she was using the Guidelines as a “guide.” Nothing in

the trial judge’s statements suggest that she viewed the Guidelines as mandatory. To the

contrary, the trial judge recognized that other courts varied from the Guidelines range but

expressly declined to do so in this case. We do not “require district judges to routinely

state by rote that they have read the Booker decision or that they know the sentencing

guidelines are now advisory.” United States v. Jackson, 467 F.3d 834, 841 (3d Cir. 2006)

(quoting United States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006)). Because it is clear

from the record that the trial judge knew she had the authority to vary from the

Guidelines, we reject Derentz’s assertion that the court erroneously treated the Guidelines

as mandatory.

       Second, Derentz contends the trial court improperly applied a two-level

enhancement for distribution of child pornography under U.S.S.G. § 2G2.2(b)(3), without

evidence that he knew his use of file-sharing software allowed others access to his files.

But Derentz pleaded guilty to distribution of child pornography, 3 which has a mens rea of

“knowingly . . . distribut[ing] the material” see 18 U.S.C. § 2252(a)(2). Thus, by

pleading guilty, Derentz admitted that he knowingly distributed child pornography.

Further, he did not object to the PSR, which included the two-level enhancement. As

Derentz’s counsel stated during the sentencing hearing, “we agree what the guidelines

are.” App. 48. Accordingly, Derentz’s challenge to the application of a two-level

enhancement under U.S.S.G. § 2G2.2(b)(3) fails.



3
  Derentz does not challenge the sufficiency of his plea allocution or the trial court’s
findings in accepting his plea.
                                              5
         Third, Derentz asserts that the trial court erred by refusing to vary from the

Guidelines range based on the allegedly harsh nature of the Guidelines for offenses

involving child pornography. 4 In support, Derentz repeatedly refers to our decision in

United States v. Grober, 624 F.3d 592 (3d Cir. 2010). But, in doing so, he misses the

mark. In Grober, we held a trial court may vary downward from the Guidelines range

based on policy disagreements with U.S.S.G. § 2G2.2. 624 F.3d at 609. We did not

mandate that a trial court do so. Id. (“We emphasize that we do not hold that § 2G2.2

will always recommend an unreasonable sentence, and district courts must, of course,

continue to consider the applicable Guidelines range. . . . Moreover, if a district court

does not in fact have a policy disagreement with § 2G2.2, it is not obligated to vary on

this basis.”). The trial court in this case was under no obligation to vary downward based

on policy concerns.

         Finally, Derentz asserts that the trial court did not properly consider the 18 U.S.C.

§ 3553(a) factors in imposing the sentence. 5 During sentencing, the trial court

referenced, among other things, the number of images and videos Derentz possessed


4
    We note that Derentz did not present this argument to the trial court.
5
  Derentz also contends that the trial court “demanded that defense counsel should have
filed for a downward departure of variance” and “[u]nder the above referenced case law,
that’s false.” Appellant’s Br. at 3. Derentz’s argument incorrectly conflates downward
departures and variances. See United States v. Fumo, 655 F.3d 288, 317 (3d Cir. 2011)
(“A traditional sentencing ‘departure’ diverges . . . from the originally calculated range
‘for reasons contemplated by the Guidelines themselves.’ In contrast, a ‘variance’
diverges . . . from the Guidelines, including any departures, based on an exercise of the
court’s discretion under § 3553(a).” (quoting United States v. Floyd, 499 F.3d 308, 311
(3d Cir. 2007) (alterations in original)). At the sentencing hearing, the trial court asked if
defense counsel had any Guideline departure motions to present, and defense counsel
stated he did not. Defense counsel was also given an opportunity to argue for a variance.
                                               6
and/or distributed, the continued victimization of children depicted in those images and

videos, and Derentz’s background. The trial court thoroughly considered the § 3553(a)

factors in imposing Derentz’s sentence.

                                           IV.

      For the foregoing reasons, we will affirm the judgment of conviction and sentence.




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