                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 15-4495


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

SCOTT EERTMOED, a/k/a John Bradford,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    James R. Spencer, Senior
District Judge. (3:15-cr-00035-JRS-1)


Submitted:   March 25, 2016                 Decided:   June 24, 2016


Before GREGORY, DIAZ, and THACKER, Circuit Judges.


Affirmed and remanded by unpublished per curiam opinion.


Geremy C. Kamens, Acting Federal Public Defender, Frances H.
Pratt, Elizabeth W. Hanes, Assistant Federal Public Defenders,
Alexandria, Virginia, for Appellant.     Dana J. Boente, United
States Attorney, Jessica D. Aber, Assistant United States
Attorney, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Scott Eertmoed appeals his sentence of 151 months in prison

after pleading guilty to distribution of child pornography in

violation of 18 U.S.C. § 2252A(a)(2)(A) (2012).                               On appeal, he

contends that his sentence is procedurally unreasonable because

the    district        court    failed       to       adequately    explain      the   chosen

sentence.        He also asks us to remand for correction of clerical

error in the record.                We affirm Eertmoed’s sentence but remand

for correction of clerical error under Fed. R. Crim. P. 36.

       We review the reasonableness of a sentence for abuse of

discretion.        United States v. Lymas, 781 F.3d 106, 111 (4th Cir.

2015) (citing Gall v. United States, 552 U.S. 38, 41 (2007)).

First,      we    consider      whether        the      district      court    committed    a

significant procedural error, such as failing to consider the 18

U.S.C. § 3553(a) (2012) factors or failing to adequately explain

the chosen sentence.            Gall, 552 U.S. at 51.

       If   the    sentence         is     procedurally        reasonable,       we   consider

whether it is substantively reasonable, taking into account the

totality of the circumstances.                    Id.     On appeal, we presume that

a   sentence      within       or    below    a       properly    calculated      Guidelines

range is substantively reasonable.                        United States v. Susi, 674

F.3d    278,      289   (4th        Cir.    2012);       see   also     United    States   v.

Strieper,        666    F.3d    288,        295-96      (4th     Cir.   2012)     (rejecting

argument that presumption should not apply to child pornography

                                                  2
sentences).     The presumption can only be rebutted by showing

that the sentence is unreasonable when measured against the 18

U.S.C. § 3553(a) factors.          United States v. Louthian, 756 F.3d

295, 306 (4th Cir.), cert. denied, 135 S. Ct. 421 (2014).

     In    sentencing,      the   district     court   must     first    correctly

calculate the defendant’s sentencing range under the Sentencing

Guidelines.     United States v. Allmendinger, 706 F.3d 330, 340

(4th Cir. 2013).      The court is next required to give the parties

an opportunity to argue for what they believe is an appropriate

sentence, and the court must consider those arguments in light

of the factors set forth in 18 U.S.C. § 3553(a).                 Id.

     When rendering a sentence, the district court must make and

place on the record an individualized assessment based on the

particular facts of the case.           United States v. Carter, 564 F.3d

325, 328, 330 (4th Cir. 2009).              While the sentencing court must

state in     open   court   the   particular     reasons       that    support   its

chosen sentence, the court’s explanation need not be exhaustive.

United States v. Avila, 770 F.3d 1100, 1107-08 (4th Cir. 2014);

see also United States v. Johnson, 445 F.3d 339, 345 (4th Cir.

2006) (court need not explicitly reference § 3553(a) or discuss

every factor on the record).            The court’s explanation must be

sufficient    “to    satisfy      the   appellate      court     that    [it]    has

considered the parties’ arguments and has a reasoned basis for



                                        3
exercising [its] own legal decisionmaking authority.”                            Rita v.

United States, 551 U.S. 338, 356 (2007).

       “Although every sentence requires an adequate explanation,

a   more   complete       and     detailed       explanation    of     a    sentence    is

required when departing from the advisory Sentencing Guidelines,

and a major departure should be supported by a more significant

justification than a minor one.”                       United States v. Hernandez,

603    F.3d    267,     271    (4th   Cir.       2010)    (citations       and   internal

quotation marks omitted).             “When imposing a sentence within the

Guidelines, however, the explanation need not be elaborate or

lengthy.”       Id. (citations and internal quotation marks omitted).

       Where the defendant properly preserved the issue of whether

the explanation was adequate, we review the issue for abuse of

discretion.          United States v. Lynn, 592 F.3d 572, 576 (4th Cir.

2010).        If we find abuse, we must reverse unless we conclude

that the error was harmless.                     Id.     The Government must show

“that the error did not have a substantial and injurious effect

or influence on the result and we can say with fair assurance

that     the        district     court’s     explicit       consideration        of    the

defendant’s          arguments    would     not    have     affected       the   sentence

imposed.”           United States v. Boulware, 604 F.3d 832, 838 (4th

Cir. 2010) (alterations and internal quotation marks omitted).

       We have reviewed the record and conclude that Eertmoed’s

sentence       is    procedurally     and    substantively       reasonable.           The

                                             4
probation officer found that Eertmoed’s Guidelines sentence was

the statutory maximum 240 months in prison.                       Eertmoed objected

to the application of a five-level enhancement for a pattern of

activity involving the sexual abuse of a minor pursuant to U.S.

Sentencing Guidelines Manual § 2G2.2(b)(5) (2014).                        The district

court    removed     the     enhancement          and    found     that     Eertmoed’s

Guidelines    range    was     151    to        188   months     in   prison.       The

Government argued that a sentence at the high end of the range —

188 months — was appropriate in this case.                     Eertmoed argued for

a sentence of 96 months.

      Among   other        things,    Eertmoed          argued     that    the   child

pornography Guidelines were not based on empirical data and thus

were not entitled to deference.                   However, we have “instructed

courts to give respectful attention to Congress’[s] view that

[child    pornography       crimes]        are    serious      offenses      deserving

serious sanctions.”          United States v. Strieper, 666 F.3d 288,

295-96 (4th Cir. 2012) (citations and internal quotation marks

omitted).     Eertmoed       also    argued       that   a   sentence      within   the

Guidelines    range    would     create         sentencing       disparities.       The

Government argued that the seriousness of the offense warranted

a sentence at the high end of the range.                       Among other things,

the     Government    noted         that        Eertmoed’s       child     pornography

collection was extensive, with over 4000 still images and 300



                                            5
videos, and he had been charged with contact offenses on a pre-

pubescent girl.

     The district court sentenced Eertmoed at the bottom of the

Guidelines     range     to     151   months      in       prison    and   5   years    of

supervised release.           The court also recommended to the Bureau of

Prisons    that      Eertmoed     participate         in    sex     offender   treatment

programs while in custody.               The court explained that it had

considered all of the factors in 18 U.S.C. § 3553(a), “and what

drove this sentence to be within the Guidelines Range was the

nature    of   the    offense.”       The       court      reiterated      that   it   had

considered all of the factors, but that this was “the primary

factor which pushes the sentence into the Guidelines Range.”

Having    reviewed     the    record,   we      are     satisfied      that    the   court

considered Eertmoed’s arguments and had a reasoned basis for

selecting its sentence.

     Eertmoed also asks us to remand the case for correction of

clerical error in the record.            The district court’s statement of

reasons fails to reflect its determinations at sentencing and is

therefore erroneous.            While Eertmoed could file a motion under

Rule 36 to correct the error, we conclude that judicial economy

weighs    in   favor    of    a   limited       remand      for     correction    of   the

clerical error.        In his reply brief, Eertmoed also asks that we

direct the district court to make the corresponding changes in

the presentence report.           Under Fed. R. Crim. P. 32(i)(3)(C), the

                                            6
district court is required to “append a copy of the court’s

determinations” at sentencing “to any copy of the presentence

report made available to the Bureau of Prisons.”   Therefore, we

direct the district court to comply with Rule 32(i)(3)(C) to the

extent that it has not already done so.

     Accordingly, we affirm the district court’s judgment but

remand for correction of clerical error.   We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before this court and argument would

not aid the decisional process.

                                           AFFIRMED AND REMANDED




                                  7
