                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                     UNITED STATES COURT OF APPEALS                  April 7, 2008
                                                                 Elisabeth A. Shumaker
                                   TENTH CIRCUIT                     Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 07-5011
 v.
                                               (D.C. No. 06-CR-047-001-HDC)
                                                         (N.D. Okla.)
 JACK MILLS DUNHAM, SR.,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before HENRY, Chief Judge, TYMKOVICH, and HOLMES, Circuit Judges.


      Defendant Jack Mills Dunham, Sr., appeals the reasonableness of the thirty-

seven month sentence that he received for pleading guilty to two counts of

possession of child pornography, in violation of 18 U.S.C. §§ 2252(a)(4)(B) and

(b)(2). Exercising our jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742,

we conclude that the sentence imposed by the district court was both procedurally



      *
          This Order and Judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1. After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
and substantively reasonable. Accordingly, we AFFIRM the district court’s

judgment.

                                I. BACKGROUND

      Mr. Dunham was charged with two counts of possessing or attempting to

possess visual depictions of a minor engaged in sexually explicit conduct that had

been transported in interstate commerce by a computer, in violation of 18 U.S.C.

§§ 2252(a)(4)(B) and (b)(2). He pleaded guilty to both counts of the indictment.

The Presentence Report (“PSR”) calculated Mr. Dunham’s base offense level at

eighteen and included a three-level reduction for acceptance of responsibility.

The PSR recommended three, two-level enhancements: (1) enhancement under

U.S.S.G. § 2G2.2(b)(2) for an offense involving prepubescent minors, (2)

enhancement under U.S.S.G. § 2G2.2(b)(6) because the offense involved use of a

computer, and (3) enhancement under U.S.S.G. § 2G2.2(b)(7)(A) because the

offense involved at least ten but fewer than 150 images.

      These enhancements brought the total offense level to twenty-one, which,

with a criminal history category of I, provided a Guidelines range of thirty-seven

to forty-six months. About a month prior to the sentencing hearing, Mr. Dunham

filed objections to the Presentence Report (“PSR”). Among other things, he

objected to the three enhancements and the finding that no factors warranted

either a departure or a variance.




                                        -2-
      The district court sentenced Mr. Dunham to thirty-seven months of

imprisonment on each count, to run concurrently, followed by ten years of

supervised release. However, the district court did not address Mr. Dunham’s

specific written objections to the PSR but instead merely explained its reasons for

choosing a sentence at the bottom of the Guidelines range. Mr. Dunham’s

counsel did not comment on this failure at the hearing. On appeal Mr. Dunham

argues that the district court erred (a) procedurally, in erroneously applying the

three enhancements, and in failing to specifically address his written objections to

the PSR; and (b) substantively, by imposing an unreasonably long sentence that

did not properly take into account the factors under U.S.S.G. Chapter 4 that

supported a downward departure, or the 18 U.S.C. § 3553(a) factors that justified

a downward variance.

                                II. DISCUSSION

      We review a federal criminal sentence for reasonableness, giving deference

to the district court under “the familiar abuse-of-discretion standard.” Gall v.

United States, 128 S. Ct. 586, 594 (2007); see United States v. Smart, ___ F.3d

___, No. 06-6120, 2008 WL 570804, at *4 (10th Cir. Mar. 4, 2008) (noting that it

is now “well settled that we review a district court’s sentencing decisions solely

for abuse of discretion”). Reasonableness “has both procedural and substantive

components.” United States v. Atencio, 476 F.3d 1099, 1102 (10th Cir. 2007); see

Gall, 128 S. Ct. at 597 (noting that a reviewing court “must first ensure that the

                                         -3-
district court committed no significant procedural error” and then should

“consider the substantive reasonableness of the sentence”).

                                          A.

      We first address Mr. Dunham’s procedural claims, which relate to the

manner in which the district court calculated and explained the sentence. See

Gall, 128 S. Ct. at 597 (noting as examples of “significant procedural error” a

district court’s “fail[ure] to calculate (or improperly calculating) the Guidelines

range” and “fail[ure] to adequately explain the chosen sentence”); United States

v. Romero, 491 F.3d 1173, 1176 (10th Cir. 2007) (treating as a claim of

procedural unreasonableness defendant’s allegation that the district court failed to

explain its reasons for rejecting an argument for a below-Guidelines sentence).

      Mr. Dunham argues that the three sentencing enhancements were

improperly applied to him. We review a district court’s legal interpretation of the

Guidelines de novo and its factual findings for clear error. See United States v.

Dalton, 409 F.3d 1247, 1251 (10th Cir. 2005). One enhancement came under

U.S.S.G. § 2G2.2(b)(7)(A) for an offense involving at least ten images but fewer

than 150. The principal investigator testified that a metal locker at Mr. Dunham’s

home contained more than 500 images of adult pornography and one envelope

with fifteen or sixteen images of child pornography. These fifteen or sixteen

images included both an e-mail address and pathway indicating that the

photographs came from a computer. These printed images were sufficient

                                          -4-
grounds for application of the enhancement. It is thus irrelevant, for purposes of

this enhancement, whether (as he contends) Mr. Dunham lacked knowledge of the

ninety-eight image files of child pornography found on his computer during

forensic examination.

      The enhancement under U.S.S.G. § 2G2.2(b)(2) applies if the material

involves a prepubescent minor or a minor who had not attained the age of twelve

years. In his change of plea colloquy, Mr. Dunham admitted possession of two

images of a minor engaging is sexually explicit conduct. The principal

investigator testified that one of those two images depicted a child of less than

one year of age. The government left up to the court the determination of

whether any of the other images of minors involved prepubescent children. We

conclude that the factual requirements for this enhancement were met.

      The enhancement under U.S.S.G. § 2G2.2(b)(6) applies if the offense

involved the use of a computer for the “possession, transmission, receipt, or

distribution of the material.” Mr. Dunham admitted during his change of plea

colloquy that he downloaded the two images charged against him using his

computer. The PSR states that “Dunham admitted that he received child

pornography from unknown persons via the internet.” R., Vol. II, at ¶ 6. At the

sentencing hearing, the principal investigator testified that the fifteen or sixteen

printed images of child pornography “have an e-mail address as well as the

pathway as far as how the image was - when it is printed there’s a pathway stating

                                          -5-
that it came from an ‘America Online’ account.” R., Vol. IV, Tr. at 18-19

(Transcript of Sentencing Hearing, dated Jan. 10, 2007). This sufficiently

established that the offenses involved the use of a computer.

      Mr. Dunham also argues that the district court committed reversible error in

failing to specifically explain its resolution of disputed portions of the PSR in

violation of Federal Rule of Criminal Procedure 32(i)(3). Because Mr. Dunham

did not object to this failure to explain at the time of sentencing, we review for

plain error. 1 See United States v. Williamson, 53 F.3d 1500, 1527 (10th Cir.

      1
              In its principal brief, the government did not argue Mr. Dunham’s
forfeiture of the Rule 32(i)(3) issue. Nonetheless, we deem it appropriate to
apply the plain error standard of review. Our decision in United States v.
Mitchell, __ F.3d __, 2008 WL 542130 (10th Cir. Feb. 29, 2008), which Mr.
Dunham cited as supplemental authority, is not to the contrary. Mitchell arises in
a wholly different context. At issue there was whether we should sua sponte
apply a procedural time bar in a claim-processing rule. We “analogized” such
bars to “traditional affirmative defenses,” the benefits of which typically only
extend to the litigants and not the court and quite reasonably must be pleaded by
the litigant seeking to benefit from their application. Mitchell, __ F.3d __, 2008
WL 542130, at *5. In contrast, the failure to contemporaneously lodge a
procedural objection to a district court’s sentencing decision directly implicates
the institutional interests of the judiciary. Both judicial economy and the
respective roles of the district and appellate courts underlie a party’s
responsibility to alert the district court to such an issue in order to merit full
appellate review. See United States v. Atencio, 476 F.3d 1099, 1105 (10th Cir.
2007) (declaring that requiring an objection for Rule 32(h) error “both promotes
the focused, adversarial resolution of the legal and factual sentencing issues . . .
and avoids inefficient appellate litigation by permitting the court below to cure its
error” (quotation marks omitted)); United States v. Lopez-Flores, 444 F.3d 1218,
1221 (10th Cir. 2006) (“A timely objection to the method [used to calculate a
sentence] can alert the district court and opposing counsel, so that a potential
error can be corrected, obviating any need for an appeal.”). Cf. Tele-
Communications, Inc. v. C.I.R., 104 F.3d 1229, 1233 (10th Cir. 1997)
                                                                         (continued...)

                                          -6-
1995) (applying plain-error review when defendant failed to make separate

objection at sentencing hearing to district court’s failure under Rule 32(i)(3)(B)’s

predecessor to resolve defendant’s factual objections to PSR); see also Atencio,

476 F.3d at 1106 (“We have previously held that failure to object to a disputed

fact at the sentencing hearing constitutes forfeiture, despite prior submission of a

written objection.”). When the district court asked if there was any objection to

the sentence imposed, Mr. Dunham’s counsel replied “None that we haven’t

already made, Your Honor.” R., Vol. IV, Tr. at 33. This is insufficient to prevent

the forfeiture of the unarticulated argument that the court erred in failing to

specifically address and reject the written objections.

      Plain error occurs when there is “(1) error, (2) that is plain, which (3)

affects substantial rights, and which (4) seriously affects the fairness, integrity, or

      1
        (...continued)
(“Propounding new arguments on appeal in an attempt to prompt us to reverse the
trial court undermines important judicial values. In order to preserve the integrity
of the appellate structure, we should not be considered a ‘second-shot’ forum, a
forum where secondary back-up theories may be mounted for the first time.”).
This is particularly true where the district court could have easily corrected the
error. Cf. United States v. Goode, 483 F.3d 676, 682 (10th Cir. 2007) (“The
alleged insufficiency of the evidence could have been quickly cured by amending
the instruction if Mr. Goode had challenged at trial the insufficiency he raises on
appeal.”). Accordingly, the ordinary constraints on sua sponte action at work in
Mitchell have no logical force here. In any event, the holding of Mitchell itself,
suggests that we are on solid ground in recognizing Mr. Dunham’s forfeiture and
employing plain error review. There, as to Fed. R. App. P. 4(b), we deemed it
appropriate to “raise its time bar sua sponte” because the rule “implicates
important judicial interests beyond those of the parties.” As discussed above, that
institutional circumstance is present here, where Mr. Dunham failed to object to
the Rule 32(i)(3) error.

                                          -7-
public reputation of judicial proceedings.” Atencio, 476 F.3d at 1106. Rule

32(i)(3)(B) declares that “for any disputed portion of the presentence report” the

district court “must . . . rule on the dispute or determine that a ruling is

unnecessary either because the matter will not affect sentencing, or because the

court will not consider the matter in sentencing.”

      It is clear that the district court’s silence about Mr. Dunham’s written

objections on factual issues that were directly relevant to the sentence imposed

constitutes error that is plain. See Atencio, 476 F.3d at 1107 (holding that

“failing to follow Rule 32(i)(3)(B)” was error). However, unlike Atencio where

the district court purported to adopt “contradictory factual statements” regarding

whether the defendant regularly abused women, 476 F.3d at 1107, the evidence

here clearly supports the conclusions in the PSR regarding the facts and

applicable enhancements. Because Mr. Dunham’s objections fail on the merits, as

discussed above, the district court’s error did not affect his substantial rights.

Therefore, plain error will not be noticed here. See United States v. Brown, 164

F.3d 518, 522 (10th Cir. 1998) (holding that a district court’s failure to make

specific findings under predecessor to Rule 32(i)(3)(B) did not “rise to the level

of obvious and substantial error”).

                                           B.

      We also must review the length of the sentence for substantive

reasonableness. See United States v. Hamilton, 510 F.3d 1209, 1217-18 (10th Cir.

                                           -8-
2007) (“In evaluating the substantive reasonableness of a sentence, we ask

whether the length of the sentence is reasonable considering the statutory factors

delineated in 18 U.S.C. § 3553(a).”). “[W]e accord a properly calculated

Guidelines sentence a presumption of substantive reasonableness.” United States

v. Hernandez, 509 F.3d 1290, 1298 (10th Cir. 2007); see Gall, 128 S Ct. at 597

(“If the sentence is within the Guidelines range, the appellate court may, but is

not required to, apply a presumption of reasonableness.”).

      Mr. Dunham argues that his sentence is unreasonable in light of the factors

set forth in 18 U.S.C. § 3553(a). When, as here, a defendant has argued for a

reduced sentence at the sentencing hearing and the claim on appeal is that the

sentence imposed is unreasonably long, we do not require the defendant to object

at the hearing in order to preserve the issue. United States v. Mancera-Perez, 505

F.3d 1054, 1058 (10th Cir. 2007); United States v. Torres-Duenas, 461 F.3d 1178,

1182-83 (10th Cir. 2006). The district court has a wide range of discretion in

striking that balance among the § 3553(a) factors. See Smart, 2008 WL 570804,

at *7 (“We may not examine the weight a district court assigns to various §

3553(a) factors, and its ultimate assessment of the balance between them, as a

legal conclusion to be reviewed de novo.”). Mr. Dunham presents nothing to this

Court which disturbs the presumption of reasonableness or suggests an abuse of

discretion.




                                         -9-
      In arguing for a variance, Mr. Dunham emphasizes his age, ill health, lack

of a criminal record, and “contribution to the American music culture.” Aplt. Br.

at 46, 48-50. 2 The district court’s decision to impose a sentence at the bottom of

the Guidelines range was apparently influenced by Mr. Dunham’s physical

infirmities, which the court mentioned as the “greatest concern” relevant to

deciding whether the sentence “should be modified from the guidelines or not.”

R., Vol. IV, Tr. at 30. It is evident from the record that the district court took Mr.

Dunham’s situation into account, and Mr. Dunham brings nothing to the attention

of this Court which merits a sentence below the Guidelines range or makes

unreasonable the thirty-seven-month sentence imposed.

      Because Mr. Dunham has not shown that his sentence was procedurally

unreasonable under the plain error standard or substantively unreasonable under




      2
             Mr. Dunham also references his request for a downward departure.
The district court’s denial of a motion for downward departure is ordinarily
unreviewable. See United States v. Fonseca, 473 F.3d 1109, 1112 (10th Cir.
2007) (“We may review a denial of a downward departure only if the denial is
based on the sentencing court’s interpretation of the Guidelines as depriving it of
the legal authority to grant the departure.”). However, a defendant’s asserted
reasons for departure will be taken into account in the reasonableness review.
Fonseca, 473 F.3d at 1112; United States v. Chavez-Diaz, 444 F.3d 1223, 1229
(10th Cir. 2006) (holding that a challenge to the reasonableness of a sentence
“necessarily requires that we take into account the defendant’s asserted grounds
for departure when reviewing the sentence for reasonableness”). The only
departure-related claim Mr. Dunham raises on appeal is the over-representation of
his criminal history. This need not be addressed separately because it is already
included in the variance analysis.

                                         -10-
the § 3553(a) factors, we AFFIRM the district court’s judgment.



                                     Entered for the Court

                                     Jerome A. Holmes
                                     Circuit Judge




                                      -11-
