     Case: 17-30710      Document: 00514571005         Page: 1    Date Filed: 07/25/2018




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

                                                                                 FILED
                                    No. 17-30710                             July 25, 2018
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JAMES VAIL,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:17-CR-72-1


Before REAVLEY, GRAVES, and HO, Circuit Judges.
PER CURIAM: *
       James Vail appeals his sentence arising from his conviction for receipt of
child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A). He argues that
the district court erred in imposing a two-level enhancement under U.S.S.G.
§ 2G2.2(b)(3)(F). Vail also challenges the substantive reasonableness of his
151-month sentence.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 17-30710    Document: 00514571005     Page: 2   Date Filed: 07/25/2018


                                 No. 17-30710

      Generally, we review a criminal sentence for reasonableness. Gall v.
United States, 552 U.S. 38, 46 (2007). We first determine whether the district
court committed any procedural errors, and if the district court’s decision is
procedurally sound, we will “consider the substantive reasonableness of the
sentence imposed under an abuse-of-discretion standard . . . tak[ing] into
account the totality of the circumstances.” Id. at 51.
      Vail argues that the district court erred in applying the § 2G2.2(b)(3)(F)
enhancement because there was no evidence that he knowingly or
intentionally distributed child pornography. However, there was evidence that
the file-sharing service Vail used to download child pornography provides
alerts that material will be shared, and Vail did not disable the sharing
capability in his settings. In any case, even if there were error, it would be
harmless because the district court considered the correct guidelines range of
imprisonment and stated that it would impose the same 151-month sentence
even if that range applied. See United States v. Richardson, 676 F.3d 491, 511
(5th Cir. 2012).
      In addition, Vail argues that the district court imposed a substantively
unreasonable sentence when it declined his request for a downward variance.
He urges that the district court placed too much emphasis on the supposition
that Vail posed a future threat as a pedophile. Vail further contends that the
district court ignored his intellectual and adaptive deficits and relied upon
outdated guideline enhancements when sentencing him.
      The record confirms that the district court considered Vail’s arguments
and made an individualized assessment of the 18 U.S.C. § 3553 sentencing
factors. It found that the quantity of pornographic images and his diagnosis
as a pedophile merited the 151-month sentence. The district court also found
that Vail’s IQ, although low, remained in the normal range. It conceded that



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                                 No. 17-30710

there was no evidence that Vail had ever touched children but nevertheless
found, based on the psychological report and the images discovered in his
possession, that Vail posed a future threat against society. Vail has not shown
that his sentence is greater than necessary to meet the goals of § 3553(a), and,
thus, the district court did not abuse its discretion. See § 3553(a); Gall, 552
U.S.at 49-50 & n.6, 51.
      AFFIRMED.




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