                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-1487
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                   Adam Hammond

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                      Appeal from United States District Court
                 for the Western District of Missouri - Springfield
                                  ____________

                          Submitted: September 18, 2012
                             Filed: October 30, 2012
                                   [Published]
                                 ____________

Before MELLOY, BEAM, and BENTON, Circuit Judges.
                          ____________

PER CURIAM.

      Adam Hammond pleaded guilty to one count of enticement of a minor for the
purpose of engaging in prohibited sexual activity, in violation of 18 U.S.C. § 2422(b),
and one count of enticement of a minor to engage in sexually explicit conduct for the
purpose of producing a visual depiction of such conduct, in violation of 18 U.S.C.
§ 2251(a) and (e). The district court1 sentenced him to two concurrent sentences of
240 months' imprisonment and fifteen years' supervised release. Hammond appeals
the district court's denial of a downward variance from the Guidelines range of 235
to 293 months. We affirm.

       Hammond argues he is entitled to a downward variance based on 18 U.S.C.
§ 3553(a). Under § 3553(a), courts consider a variety of factors before imposing a
sentence, including "the nature and circumstances of the offense and the history and
characteristics of the defendant," "the seriousness of the offense," the need "to afford
adequate deterrence to criminal conduct," the need "to protect the public," and "the
need to avoid unwarranted sentence disparities among defendants with similar records
who have been found guilty of similar conduct." 18 U.S.C. § 3553(a)(1), (2)(A)-(C),
(6).

       Because Hammond's victim was eleven years old for much of the material time
period in this case, the district court applied United States Sentencing Guidelines
Manual § 2G1.3(b)(5), which enhances the base level offense by eight levels where
the crime involved a child under the age of twelve. Both parties agree Hammond
believed the victim was thirteen, but they also agree that § 2G1.3(b)(5) applies even
when the defendant did not know the victim was under the age of twelve. Thus, the
contested issue on appeal is not whether the enhancement was properly applied to
Hammond, but whether Hammond's ignorance of the victim's true age is a
characteristic under § 3553 that merits a downward variance.2

      1
       The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.
      2
      On appeal, it appears Hammond argues only that the district court should have
compensated for § 2G1.3(b)(5) by granting a downward variance; he does not argue
the application of § 2G1.3(b)(5) was itself error. At the sentencing hearing,
Hammond objected to application of the enhancement altogether and seemed to
suggest it should only apply to defendants who knew the victim was under twelve
                                          -2-
       Hammond argues that because he believed the victim to be thirteen—because
he did not know she was under the age of twelve—the application of § 2G1.3(b)(5)
unfairly subjects him to the same sentencing range as offenders who purposely seek
out prepubescent victims. He argues that unlike the majority of offenders subject to
the enhancement, he did not intentionally seek out a victim under the age of twelve.
He claims his ignorance of the victim's true age distinguishes him from the type of
offender the enhancement was designed to target, and he should have been granted
a downward variance from the Guidelines range based on that distinction.

       "We do have authority to review the court's refusal to grant a downward
variance for abuse of discretion." United States v. Brown, 627 F.3d 1068, 1074 (8th
Cir. 2010) (citing Gall v. United States, 552 U.S. 38, 46 (2007)). "When we review
a defendant's sentence to determine whether it is unreasonable with regard to the
application of 18 U.S.C. § 3553(a), we apply a deferentional abuse-of-discretion
standard." United States v. Acosta, 619 F.3d 956, 962-63 (8th Cir. 2010) (quoting
United States v. Gonzalez, 573 F.3d 600, 607 (8th Cir. 2009)). "In explaining the
sentence the district court need only set forth enough to satisfy the appellate court that
he has considered the parties' arguments and has a reasoned basis for exercising his
own legal decisionmaking authority." Id. at 963.

       We conclude "the district court thoroughly considered the relevant factors set
forth in § 3553(a) and reached a substantively reasonable conclusion." United States
v. Bauer, 626 F.3d 1004, 1010 (8th Cir. 2010). The district court specifically pointed
to the seriousness of Hammond's offense, the need to protect the public, and the need
to deter future crimes as statutory factors weighing in favor of a sentence within the



years of age. We interpret Hammond's appeal as limited to whether the district court
abused its discretion by failing to grant a downward variance, and we restrict our
analysis accordingly.
                                           -3-
Guidelines range. Moreover, "[t]he district court's decision to place greater emphasis
in this case on factors that favored a sentence within the advisory range . . . than on
other 3553(a) factors that might favor a more lenient sentence is a permissible
exercise of the considerable discretion available to a sentencing court under the post-
Booker regime." United States v. Ruelas-Mendez, 556 F.3d 655, 658 (8th Cir. 2009).
The district court's statements, specifically that "dealing with the age even that you
knew, 13 years old, for somebody of your age is a small difference to me from a 12-
year-old or 11-year-old," show the court considered Hammond's ignorance of the
victim's true age and determined it did not carry sufficient weight to offset the other
statutory factors.

      For these reasons, we affirm the judgment of the district court.
                      ______________________________




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