     Case: 11-10626     Document: 00511913836         Page: 1     Date Filed: 07/09/2012




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

                                                                            FILED
                                                                            July 9, 2012

                                       No. 11-10626                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee
v.

ANTHONY R. SHERLEY,

                                                  Defendant–Appellant



                   Appeal from the United States District Court
                        for the Northern District of Texas
                               USDC No. 4:11-CR-5


Before KING, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Anthony R. Sherley appeals his 420-month sentence
for distributing child pornography. Sherley raises three issues on appeal, two
of which he concedes are foreclosed. We AFFIRM.
        Relying on a Second Circuit case, Sherley first contends that his sentence
is substantively unreasonable because the child-pornography Guideline lacks an
empirical basis and systematically results in sentences disproportionate to those
necessary to effectuate the sentencing goals of 18 U.S.C. § 3553(a). See U.S.S.G.

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-10626   Document: 00511913836      Page: 2   Date Filed: 07/09/2012



                                  No. 11-10626

§ 2G2.2; United States v. Dorvee, 616 F.3d 174, 182-88 (2d Cir. 2010). Sherley
acknowledges that this argument is foreclosed by analogy based on our decision
in United States v. Duarte, 569 F.3d 528, 530-31 (5th Cir. 2009). We recently
declined to follow the Second Circuit’s lead on this question and specifically
rejected the argument Sherley advances here. See United States v. Miller, 665
F.3d 114, 119-26 (5th Cir. 2011), cert. denied, 2012 WL 894600 (June 18, 2012).
      Sherley next asserts that the Fifth and Sixth Amendments require that
any fact going to a sentence’s reasonableness be proven to a jury beyond a
reasonable doubt. He specifically argues that the district court erred in finding,
when such facts were neither contained in the indictment nor admitted, that he
engaged in a prior pattern of sexual abuse; that he received images of child
pornography in exchange for distributing such images; and that he possessed
more than 600 such images at the time of his arrest. These facts were alleged
in the PSR. Sherley failed to object to the PSR’s contents, which the district
court adopted as its factual findings. As Sherley admits, precedent forecloses
this issue. See United States v. Rhine, 583 F.3d 878, 891 n.50 (5th Cir. 2009)
(“‘[T]he sentencing judge is entitled to find by a preponderance of the evidence
all the facts relevant to the determination of a guideline sentencing range.’”
(quoting United States v. Johnson, 445 F.3d 793, 798 (5th Cir. 2006))).
      In his only issue not foreclosed by circuit precedent, Sherley argues that
the district court abused its discretion by imposing a sentence based upon a
clearly erroneous “legislative fact”: that Congress “thought” about § 2G2.2’s
allegedly harsh sentencing regime. This argument stems from the district
court’s ruminations that, although it had “trouble with” similar cases because
the “sentences are severe,” it was “sure thought has been given to it and that
when Congress directed the guidelines to be as they are, they were based on
what members of Congress thought was appropriate, and . . . the Courts should
[not] be second-guessing them.” In Sherley’s view, § 2G2.2 resulted from a last-

                                        2
   Case: 11-10626       Document: 00511913836         Page: 3     Date Filed: 07/09/2012



                                       No. 11-10626

minute, stealth amendment to a complex bill covering myriad other topics and,
therefore, it is inaccurate to say that Congress “thought” about it. Sherley,
however, failed to contemporaneously object to the district court’s reference to
congressional consideration of the Guideline amendment, arguably limiting our
review to plain error. See Puckett v. United States, 556 U.S. 129, 135 (2009).
       Regardless of the standard of review, we conclude that the district court
committed no error. In context, the district court’s passing remarks merely
reflected its respect for Congress. We disagree with Sherley’s implicit assertion
that a district court may not rely on Congress’s expressed wishes unless the
court first concludes—after a fact-finding hearing—that Congress gave “enough”
thought to a bill’s enactment. We have difficulty envisioning what such a
hearing would look like. In any event, the district court’s comments do not
represent a “factual finding” that is or could be “clearly erroneous.”
       The sentencing transcript, moreover, makes explicit that the district court
based its sentencing decision on factors permissible under § 3553(a). Although
the district court noted that some child pornography cases result in “troub[ling]”
and “severe” sentences, it stated that Sherley’s case was “not as difficult”
because he “ha[d] engaged in [prior] conduct that proves he has the capacity to
actually molest a child, and that he started . . . being involved in this child
pornography offense not too long after he had served a 10-year sentence for that
conduct.”1 The district court found that the imposed sentence “adequately
address[ed]” the “concerns” under § 3553(a) in light of Sherley’s sex-abuse
history, his conduct in the instant case, and the Guidelines calculation. We
discern no error warranting reversal in this conclusion.
       AFFIRMED.


       1
        The district court referred to the PSR’s description of Sherley’s Texas conviction for
indecency with a child by sexual contact, for which he served ten years in state prison and is
required to register as a sex offender.

                                              3
