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

                                                 FILED
                                                                            July 24, 2009

                                       No. 08-10380                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee
v.

RICKY NEAL MEUIR

                                                   Defendant-Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:07-CR-158-1




Before WIENER, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       This case concerns a challenge to U.S.S.G. § 2G2.2, the Sentencing
Guideline covering child pornography offenses. Because Appellant’s sentencing
was not contaminated by any procedural error and his sentence is substantively
reasonable, we AFFIRM.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                      No. 08-10380

             I. FACTUAL AND PROCEDURAL BACKGROUND
      This case arises out of interactions in an Internet chat room between
Appellant Ricky Neal Meuir (“Appellant”) and Detective James McLaughlin
(“McLaughlin”), a police officer in Keene, New Hampshire. In July 2007,
McLaughlin, posing as a 14-year-old boy named Brad Dean, engaged in several
internet chat sessions with Appellant, who was posing as a 13-year-old boy from
Texas. In the course of these chat sessions, Appellant sent McLaughlin several
images and video clips of child pornography. A search of Appellant’s residence
in Fort Worth, Texas turned up additional child pornography: 1,318 printed
photographs, 1,733 digital images, 143 digital video clips, and 525 images on
seven VHS tapes.
      Appellant confessed to sending the images to McLaughlin and pleaded
guilty to Receipt of Child Pornography in violation of 18 U.S.C. § 2252(a)(2).
Appellant’s base offense level under the U.S. Sentencing Guidelines was
calculated at 22; enhancements were added for receiving material involving a
prepubescent minor (two levels), distribution of material to a minor intended to
persuade or entice a minor to engage in illegal activity (six levels), receiving
material portraying sado-masochistic conduct or depictions of violence (four
levels), use of a computer (two levels), and possession of over 600 images (five
levels).   Appellant   received   a    three-level   reduction   for   acceptance   of
responsibility, resulting in a total offense level of 38 and zero criminal history
points. The advisory sentencing range under § 2G2.2 was 235-293 months, which
was reduced to 235-240 months to reflect the statutory maximum of 20 years.
The district court sentenced Appellant to 240 months and a lifetime of
supervised release. Appellant now appeals, arguing that his sentence is both
procedurally flawed and substantively unreasonable.




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                        II. STANDARD OF REVIEW
      We have recently clarified our approach in reviewing sentencing
challenges on appeal. First, we determine whether the district court committed
any procedural error. United States v. Delgado-Martinez, 564 F.3d 750, 753 (5th
Cir. 2009). If it did, we apply a harmless error test. Id. A procedural error is
harmless only if it did not affect the district court’s choice of sentence. Id. In
proving harmless error, the proponent of the sentence “must point to evidence
in the record that will convince us that the district court had a particular
sentence in mind and would have imposed it, notwithstanding the error made
in arriving at the defendant’s guideline range.” Id. If a procedural error is
significant – i.e., not harmless – it usually requires reversal. Significant
procedural errors are those such as failing to calculate the Guideline range
correctly or failing to calculate a Guideline range at all. Id. When there was no
procedural error or any procedural error was harmless, this court will proceed
to analyze the substantive reasonableness of the sentence. Id. Substantive
reasonableness review entails consideration of the totality of the circumstances
surrounding the offense. Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 597
(2007).


                                III. ANALYSIS
      Appellant argues that his sentencing was contaminated by procedural
error and that his sentence is substantively unreasonable. We disagree.


Procedural Error
      Congress requires that when sentencing a defendant, a district court give
“the reasons for its imposition of the particular sentence.” 18 U.S.C. § 3553(c).
Sentences within the Guidelines require “little explanation,” United States v.
Mares, 402 F.3d 511, 519 (5th Cir. 2005), but this court has held that “more is

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required if the parties present legitimate reasons to depart from the Guidelines,”
United States v. Mondragon-Santiago, 564 F.3d 357, 362 (5th Cir. 2009).1
Appellant argues first that the district court erred in not responding adequately
to his arguments for a downward variance. Because Appellant preserved his
objections at sentencing we review for abuse of discretion. Mondragon-Santiago,
564 F.3d at 360.
       In this case, one of Appellant’s arguments for a non-Guideline sentence
was legitimate – that he was a first-time offender statistically at low risk for
recidivism. The district court adequately explained the reasons for rejecting this
argument. The other argument, that the Guideline was not entitled to deference
because Congress amended it directly, was not legitimate for the reasons
described below, and the district court’s rejection of it therefore required little
explanation. We address each in turn.
       Appellant first argues that the district court did not adequately address
his request for a variance based on his status as a first-time offender statistically
at low risk for recidivism. The district court did not address the variance request
directly, but its comments make clear that it considered – and rejected –
Appellant’s arguments. In reference to the fact that the plea agreement charged
Appellant with a single count, the district court said: “Well, I’ve got some
misgivings about it but I’ll accept the plea agreement, so the judgment of the


       1
        Although a “departure” is different from a “variance” (a departure is given within the
Guidelines framework while a variance is a deviation from the Guidelines), see, e.g., United
States v. Smith, 440 F.3d 704, 706-07 (5th Cir. 2006), this court’s opinion in Mondragon-
Santiago, while using the phrase “depart from the Guidelines” seems to have used that phrase
as shorthand for “giving a non-Guideline sentence for any reason,” since the court cited to Rita
v. United States, 551 U.S. 338, 127 S. Ct. 2456 (2007), as authority for this proposition.
Mondragon-Santiago, 564 F.3d at 362. In Rita, the Supreme Court explained that “[w]here the
defendant or prosecutor presents nonfrivolous reasons for imposing a different sentence ... the
judge will normally go further and explain why he has rejected those arguments.” Rita, 127
S.Ct. at 2468. Thus it appears that both Rita and Mondragon-Santiago envision more
explanation being required for a district court’s rejection of legitimate arguments in favor of
a non-Guideline sentence whether the request is for a variance or a departure.

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Court will be consistent with it. I think we’re too often having, in this kind of
case, we’re having plea agreements that really compromise the objectives of
sentencing as evidenced by the guidelines. But I’ll accept the plea agreement in
this case.” The district court, in fact, expressed relief that the plea agreement
would allow it to sentence Appellant to the 20 year statutory maximum, noting,
“Well, frankly, I was concerned that I would have to sentence less than the top
of the guideline range that would apply.” Finally, before announcing the
sentence, the district court said:
      I’ve considered all of the factors the defendant’s attorney has
      advocated and I continue to be of the belief that these are very
      serious offenses that deserve serious punishment. And when you
      consider all of the factors that the court should consider in
      determining what punishment to impose, I conclude that a term of
      imprisonment of 240 months is a reasonable sentence of
      imprisonment in this case, plus a term of supervision for the
      remainder of his life.
      ***
      I’m satisfied that the sentence I’ve imposed is a reasonable sentence
      in the sense that at least a sentence at that level is required to
      adequately address the defendant’s conduct and all of the factors
      that are enumerated in 18 United States Code, Section 3553(a).
The district court specifically noted that it had been concerned that the plea
agreement would prevent it from giving Appellant the statutory maximum. It
stated that it had considered the arguments advanced by counsel and the §
3553(a) factors and that it believed the crime was a serious one that deserved
serious punishment. It even announced for the record that it had considered
rejecting the plea agreement altogether because it considered it potentially too
lenient. See Fed. R. Crim. P. 11(c). These statements taken together, as a
response to an argument for a downward variance based on the offender’s first-
time offender status and low statistical risk of recidivism, suffice as an
explanation as to why the district court did not find it appropriate to grant a
downward variance.

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                                  No. 08-10380

      Appellant’s second argument in favor of his request for a downward
variance at sentencing – that § 2G2.2 was structurally flawed because it was
amended directly by Congress, circumventing the Sentencing Commission – is
clearly meritless. The Sentencing Commission derives its authority from
Congress, and Congress can amend the Guidelines directly should it choose to
do so. 18 U.S.C. § 3553(a)(4)(A)(I). The simple fact that Congress directly
amended a Guideline does not render that Guideline flawed. The district court’s
failure to respond directly to this argument when giving a within-Guideline
sentence is not procedural error, since the argument is not legitimate. Appellant
also makes a separate claim of procedural error on the grounds that because of
the allegedly flawed nature of § 2G2.2 any consideration of that Guideline at
sentencing constitutes procedural error. This contention is meritless for the
same reasons.


Substantive Reasonableness
      If there is no reversible procedural error, as in this case, we proceed to
review the sentence for substantive reasonableness. Delgado-Martinez, 564 F.3d
at 753. Appellant claims that his sentence is substantively unreasonable, and
further appears to argue that § 2G2.2 should not enjoy a presumption of
reasonableness on appeal. We need not reach this latter contention because
Appellant’s sentence is substantively reasonable whether the Guideline enjoys
a presumption of reasonableness on appeal or not. Since Gall, 552 U.S. 38, we
review all sentences, whether inside or outside of the Guidelines, for substantive
reasonableness. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.
2008). Because Appellant objected to his sentence as unreasonable below, this
court reviews for abuse of discretion. Id. A non-Guideline sentence is
unreasonable in light of the § 3553(a) sentencing factors when it “(1) does not
account for a factor that should have received significant weight, (2) gives

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significant weight to an irrelevant or improper factor, or (3) represents a clear
error of judgment in balancing the sentencing factors.” United States v. Smith,
440 F.3d 704, 708 (5th Cir. 2006). After Gall, a within-Guidelines sentence may
be afforded a presumption of reasonableness. Gall, 128 S. Ct. at 597. This court
has chosen to do so. See, e.g., United States v. Campos-Maldonado, 531 F.3d 337,
338 (5th Cir. 2008). Such a presumption of reasonableness is rebutted only
“where the sentence falls so far afoul of one of the standards in [United States
v. Smith] as to constitute a clear error in the court’s exercise of its broad
sentencing discretion.” United States v. Nikonova, 480 F.3d 371, 376 (5th Cir.
2007). Appellant’s sentence is reasonable under either standard.
      Appellant possessed over 3,000 images of child pornography. He sent
pornographic and child pornography images – some of which contained violent
imagery – to someone he believed was a minor, and encouraged that person to
send him pornographic images of himself. Appellant’s only specific contention as
to substantive unreasonableness in this case is that the district court should
have given greater weight to the fact that this was his first offense. But given
the scope of Appellant’s collection of child pornography and his aggressive
behavior in soliciting pornographic images from someone he believed to be a
minor, the district court did not abuse its discretion – much less commit clear
error – in sentencing Appellant to the within-Guideline statutory maximum. The
district court’s judgment is AFFIRMED.




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