                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0246n.06

                                           No. 09-6028

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

                                                                                  FILED
UNITED STATES OF AMERICA,                                                      Apr 19, 2011
                                                 )                       LEONARD GREEN, Clerk
       Plaintiff-Appellee,                       )
                                                 )
v.                                               )     ON APPEAL FROM THE UNITED
                                                 )     STATES DISTRICT COURT FOR THE
MATTHEW STEWARD,                                 )     WESTERN DISTRICT OF KENTUCKY
                                                 )
       Defendant-Appellant.                      )


Before: SUTTON and STRANCH, Circuit Judges; WELLS, District Judge.*

       JANE B. STRANCH, Circuit Judge.               Matthew Steward challenges the substantive

reasonableness of the 70-month prison sentence the district court imposed after Steward pleaded

guilty to receiving and possessing child pornography that had been transported by computer in

interstate commerce, in violation of 18 U.S.C. §§ 2252A(a)(2)(A), 2252A(a)(5)(B), and 2252A(b)(1)

& (2). Steward faced a five-year mandatory minimum sentence on the receiving charge, 18 U.S.C.

§ 2252A(b)(1), and his advisory guideline range was 97 to 121 months. The district court granted

a downward variance to 70 months, but Steward contends the district court should have imposed the

statutory minimum sentence of 60 months.             Concluding that the 70-month sentence was

substantively reasonable, we AFFIRM.



       *
         The Honorable Lesley Wells, United States District Judge for the Northern District of Ohio,
sitting by designation.

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                                            I. FACTS

       In March 2005, a special agent with Immigration and Custom Enforcement’s (“ICE’s”) Cyber

Crime Unit in Texas discovered child pornography on a file sharing network that he traced to a

computer located at the Steward residence in Kentucky. After further investigation, ICE agents

learned that Matthew Steward, then 19 years old, lived at the residence with his parents. On May

20, 2005, ICE agents executed a search warrant at the residence. Steward admitted that he

downloaded child pornography through a file-sharing program, but the agents did not arrest him that

day. The agents seized two computers and compact discs. Subsequent forensic analysis revealed

67 images and 22 videos of child pornography on the hard drive of one of the computers and an

additional 12 images and 7 videos of child pornography on compact discs. At least one video

depicted the bondage and rape of a female child under 10 years of age. Another video more than

thirty minutes in length showed a preteen female engaging in various sexual acts with an adult male.

       The government launched the criminal prosecution with the filing of a criminal complaint

on October 18, 2005. During the detention hearing on October 20, the magistrate judge learned that

Steward obtained a second computer put together with used parts after agents executed the search

warrant in May 2005. The magistrate judge ordered ICE to conduct forensic analysis on the second

computer. ICE found that Steward had downloaded an additional 82 images of child pornography.

       The Second Superseding Indictment charged Steward with one count each of distribution and

receipt of child pornography and two counts of possession of child pornography. The indictment

also contained a count for criminal forfeiture.

       In a plea agreement, Steward agreed to plead guilty to the receiving and possession counts

in exchange for the government’s dismissal of the two remaining counts. The government agreed


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to recommend a three-level reduction for acceptance of responsibility and a sentence at the low end

of the advisory guideline range. The government also agreed to allow Steward to argue for a

sentence below the advisory guideline range.1

        Steward faced a statutory mandatory minimum sentence of 60 months on the receiving count.

With a total offense level of 30, and a criminal history category of I, the advisory guideline range was

97 to 121 months.

        The district court considered the presentence report, the advisory guideline range, the parties’

lengthy sentencing memoranda, two psychological evaluations of Steward, numerous letters written

to the court by family members and friends on Steward’s behalf, the testimony of Steward’s mother,

Steward’s allocution, and the arguments of the attorneys. Steward expressed remorse and asked for

another chance. His attorney asked for the minimum sentence of 60 months, contending that a

higher sentence would be too punitive to meet the goals of sentencing under 18 U.S.C. § 3553(a).

The government requested a sentence of 97 months, noting that if the government had not dismissed

the distribution count and Steward had been convicted of it, his guideline range would have been

much higher with a sentence potentially twice as long.

        The district court granted a downward variance and imposed a term of 70 months of

imprisonment on each count, to run concurrently, and 10 years of supervised release with special




       1
         The parties agreed at the guilty plea hearing that Steward would waive his right to appeal
the conviction, but not the sentence. They modified the plea agreement, and the district court
advised Steward accordingly. At sentencing, however, defense counsel erroneously stated that
Steward waived his right to appeal the sentence, and Steward executed a waiver to that effect at the
court’s request. The government agrees with Steward on appeal that he did not waive the right to
appeal the sentence. Consequently, the waiver issue is moot and we do not consider it.


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conditions. The court did not require payment of a fine or restitution, but the court did impose a

special assessment of $200.

                                   II. STANDARD OF REVIEW

        “The touchstone of appellate review of a district court’s sentencing decision is

reasonableness, a concept that has both a procedural and a substantive component.” United States

v. Gunter, 620 F.3d 642, 645 (6th Cir. 2010) (citing Gall v. United States, 552 U.S. 38, 51 (2007)).

Because Steward contends only that the district court’s sentence was substantively unreasonable, we

review for an abuse of discretion. Id. In selecting a sentence, a district court must consider the

factors listed in 18 U.S.C. § 3553(a) and choose a sentence “sufficient, but not greater than necessary

to comply with” those factors. Id. at 647. A sentence will be deemed substantively unreasonable

if the district court selects the sentence arbitrarily, bases the sentence on impermissible factors, fails

to consider pertinent § 3553(a) factors, or gives an unreasonable amount of weight to any pertinent

factor. Id.

        While we apply a presumption of reasonableness to a sentence within the guideline range,

we do not apply a presumption of unreasonableness to a sentence outside the guideline range. United

States v. Henry, 545 F.3d 367, 384-85 (6th Cir. 2008). Rather, we take into account the totality of

the circumstances, including the extent of any variance from the guideline range, and we give “due

deference to the district court’s decision that the § 3553(a) factors, on the whole, justify the extent

of the variance[]” from the guideline range. Id. Our reasonable conclusion that a different sentence

is appropriate is not alone sufficient to justify reversal. Id.




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                                         III. DISCUSSION

        Steward contends that his 70-month prison sentence was greater than necessary to satisfy the

sentencing considerations of § 3553(a). He challenges comments the district court made at

sentencing concerning Steward’s allocution, his mother’s testimony, and letters the court received

on Steward’s behalf. Steward believes the comments indicate the district court gave unreasonable

weight to a perceived lack of appreciation for the seriousness of the offense and respect for law.

        Having carefully reviewed the district court’s comments, we are not convinced the district

court gave undue weight to the seriousness of the offense. In isolation, the court’s comments might

seem harsh, but read in the context of the entire record, the remarks responded directly to an attitude

expressed in some of the letters and in some portions of the testimony tending to minimize the

seriousness of Steward’s conduct in receiving, possessing, and viewing child pornography.

        The district court discussed all of the § 3553(a) sentencing factors, including the nature and

circumstances of the offense; Steward’s history and characteristics; the need to reflect the seriousness

of the offense, promote respect for the law and provide just punishment for the offense; the need to

deter future criminal conduct; the need to protect the public; the need to provide for Steward’s

rehabilitation, and the kinds of sentences available. The court expressly recognized its duty to

determine a reasonable sentence not greater than necessary to meet sentencing objectives.

        The district court ultimately determined that a sentence of 97 months at the low end of the

advisory guideline range was too long, but the statutory minimum sentence of 60 months was too

short. The district judge recognized that Steward would have faced a far longer sentence if the

government had not agreed to dismiss the distribution charge. The court was concerned with the

large number of child pornography images Steward downloaded, as well as Steward’s conduct in


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obtaining a second computer and downloading more child pornography even after ICE agents seized

computers from his parents’ home during execution of a search warrant. The court also found,

however, that a term of 97 months was unnecessary to deter Steward from future criminal conduct,

Steward had probably learned from the experience, Steward was “a lot younger than 19 mentally and

developmentally,” and the psychological evidence confirmed Steward suffered from depression

which made him less likely to understand and control his conduct. Contrary to Steward’s argument,

the district court considered Steward’s age, his depression and psychological evaluations, his

expressed remorse, and his lack of a criminal history.

       We conclude the district court did not abuse its discretion in choosing an imprisonment term

of 70 months, which was 27 months below the low end of the advisory guideline range and only 10

months higher than the statutory minimum sentence. The court considered all of the § 3553(a)

sentencing factors, without giving undue weight to the seriousness of the offense. We give “due

deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of

the variance[]” from the guideline range. Henry, 545 F.3d at 385.

       For all of these reasons, we AFFIRM the sentence as substantively reasonable.




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