                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 09-3060


                           UNITED STATES OF AMERICA

                                           v.

                               JAMES LEWIS MOORE,
                                           Appellant


                      Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                     (D.C. Criminal Action No. 4-07-cr-00408-001)
                      District Judge: Honorable James F. McClure


                      Submitted Under Third Circuit LAR 34.1(a)
                                  March 24, 2010


             Before: RENDELL, AMBRO, and FUENTES, Circuit Judges

                                 (filed: April 6, 2010)


                                       OPINION


AMBRO, Circuit Judge

      James L. Moore pled guilty to receiving and distributing child pornography, in

violation of 18 U.S.C. §§ 2252(a)(2) and (b)(1). The District Court sentenced Moore to

120 months’ imprisonment. Moore challenges his sentence, arguing that it was
substantively unreasonable because the District Court afforded undue deference to the

child pornography Sentencing Guidelines. We disagree and therefore affirm.

                                            I.

      A child pornography investigation conducted by Australian authorities led to the

FBI’s discovery of an individual in Florida using the screen name “gekiblue,” who had

been sending images of child pornography via the internet to an individual in

Williamsport, Pennsylvania, who was using the screen name “outlawjessjames.” The

computer of the user with the screen name “outlawjessjames” was traced via

administrative subpoena to an address in Williamsport, and when FBI agents went to the

address they found Moore there. He voluntarily spoke with the agents, and during the

interview admitted that he had engaged in online chats with, and received child

pornography from, “gekiblue.”

      Moore consented to a search of his computer, and an analysis of the computer

revealed 321 images of child pornography, 235 of which had been received from

“gekiblue.” These images were virtually all of minors under the age of twelve engaging

in sexually explicit conduct. The images also included portrayals of sadistic conduct

whereby babies were physically restrained. The computer analysis revealed also that

Moore had sent photos to “gekiblue,” several of which contained child pornography.

      A grand jury returned a three-count indictment charging Moore with receipt,

distribution, and possession of child pornography, and Moore pled guilty to the receipt

and distribution counts. Moore’s range under the Sentencing Guidelines was 135 to 168

                                            2
months’ imprisonment, but his counsel argued for the mandatory minimum sentence of

five years,1 contending that Moore had never engaged in any violent or predatory

behavior and that the sentencing enhancements in the child pornography Guidelines were

not based on scientific or empirical data. The District Court considered and rejected

Moore’s arguments, considered the 18 U.S.C. § 3553(a) sentencing factors, and sentenced

Moore to 120 months’ imprisonment. Moore now appeals that sentence.2

                                            II.

      The Sentencing Guidelines are now advisory only. United States v. Booker, 543

U.S. 220, 246 (2005). In United States v. Gunter, 462 F.3d 237 (3d Cir. 2006), we

provided sentencing judges with a three-step process for determining the appropriate

sentence to impose on a defendant:

      (1) Courts must continue to calculate a defendant’s Guidelines sentence
      precisely as they would have before Booker.

      (2) In doing so, they must formally rule on the motions of both parties and
      state on the record whether they are granting a departure and how that
      departure affects the Guidelines calculation, and take into account our
      Circuit’s pre-Booker case law, which continues to have advisory force.




      1
        The receipt and distribution counts each carried a mandatory minimum sentence
of five years’ imprisonment, but following argument concerning whether the five-year
terms would run consecutively or concurrently, the District Court concluded that it had
the authority to run the mandatory minimums “concurrent with each other,” and therefore
the effective mandatory minimum in this case was five years.
      2
        The District Court had jurisdiction over this case pursuant to 18 U.S.C. § 3231.
We have jurisdiction over Moore’s challenge to his sentence under 18 U.S.C. § 3742(a),
as well as under 28 U.S.C. § 1291.

                                            3
       (3) Finally, they are required to exercise their discretion by considering the
       relevant [18 U.S.C.] § 3553(a) factors in setting the sentence they impose
       regardless whether it varies from the sentence calculated under the
       Guidelines.

Gunter, 462 F.3d at 247.

       A district court’s sentencing decision is reviewed for abuse of discretion, United

States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc), and indeed, “appellate

review of sentencing decisions is limited to determining whether they are ‘reasonable.’”

Gall v. United States, 552 U.S. 38, 46 (2007). “As an appellate court, our role is two-

fold.” United States v. Wise, 515 F.3d 207, 217 (3d Cir. 2008). First, we must “ensure

that the district court committed no significant procedural error, such as failing to

calculate (or improperly calculating) the Guidelines range, treating the Guidelines as

mandatory, [or] failing to consider the § 3553 factors.” Gall, 552 U.S. at 51. Second, we

“consider the substantive reasonableness of the sentence imposed . . . .” Id. “For a

sentence to be substantively reasonable, a district court must apply the § 3553(a) factors

reasonably to the circumstances of the case.” United States v. Lessner, 498 F.3d 185, 204

(3d Cir. 2007). In this analysis, “[a]s long as a sentence falls within the broad range of

possible sentences that can be considered reasonable in light of the § 3553(a) factors, we

must affirm.” Wise, 515 F.3d at 218.

                                             III.

       Moore does not contend that the District Court committed procedural error, nor do

we conclude that it so erred. The Court correctly calculated Moore’s Guidelines range,



                                              4
made clear that the Guidelines were advisory, considered and rejected Moore’s arguments

for a lesser sentence, considered the § 3553(a) factors,3 and imposed a sentence 15

months below the low end of the Guidelines range. Instead, Moore’s contention is that

the sentence was substantively unreasonable because, in imposing the sentence, the

District Court afforded undue deference to the child pornography Guidelines, U.S.S.G.

§ 2G2.2. Moore argues that because these Guidelines were formulated on the basis of

statutory directives, and not empirical data and national experience, the District Court

should have afforded them no deference, thus abusing its discretion by using them as a

starting point for Moore’s sentence.

       While we have stated that “sentencing courts may disagree with the Guidelines

based on policy,” United States v. Thielemann, 575 F.3d 265, 272 n.12 (3d Cir. 2009)

(citing Kimbrough v. United States, 552 U.S. 85, 101 (2007); Spears v. United States, 129

S. Ct. 840, 843 (2009)), nothing in our precedent requires district courts to afford lesser

deference to Guidelines that are not based on scientific or empirical data. Kimbrough

held only that when a Guideline is based on statutory directives, as opposed to “empirical

       3
        The District Court concluded that the seriousness of the offense and the need to
promote respect for the law, provide just punishment for the offense, afford adequate
deterrence to criminal conduct, and protect the public from further crimes all indicated
that a “significant[ly] serious” sentence was appropriate, because many of the images
were of very young children and several of them showed sadistic and masochistic conduct
involving physical restraints being used on the children. On the other hand, the District
Court concluded that Moore’s personal history and characteristics counseled toward a
lesser sentence, given that the criminal conduct occurred over a short period of time, there
was no evidence that Moore had ever exhibited violent or predatory behavior, and he had
a very limited earning capacity because he was solely dependent on Social Security
disability income for 20 years.

                                              5
data and national experience,” a court may choose to afford that Guideline less deference.

552 U.S. at 109. It did not hold that a sentencing court must vary from the Guidelines

under such circumstances.

       Moore relies heavily on United States v. Grober, 595 F. Supp. 2d 382 (D.N.J.

2008), in which the Court concluded, based on policy considerations, that “the present

guideline, § 2G2.2, must be given less deference than the guidelines traditionally

demand.” Id. at 412. The Grober Court was free to exercise its discretion in that way.

However, there is no authority for the proposition that a district court’s reliance on a

Guideline that is based on statutory directives to fashion a sentence makes that sentence

substantively unreasonable. Here, the District Court explicitly considered Grober,

expressed disagreement with its reasoning, distinguished it on its facts (noting that in

Grober the Guidelines range included the statutory maximum, which likely caused the

Court to scrutinize the child pornography Guidelines more closely), and rejected Moore’s

argument. The District Court here was free to exercise its discretion in this way, just as

the Grober Court was free to exercise its discretion in the way it did.

       In short, where a sentence is otherwise reasonable, “no justification exists for

reversing the District Court because of its reliance on a currently valid Guideline.”

Thielemann, 575 F.3d at 272 n.12. Nothing in this record convinces us that Moore’s

sentence was substantively unreasonable, especially as it was more than a year below the

low end of his Guidelines range.




                                              6
                                     *   *   *   *   *

       In this context, we hold that Moore’s sentence of 120 months was reasonable, and

that the District Court did not abuse its discretion in imposing this below-Guidelines

sentence. Thus, we affirm.




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