                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 14-4291


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MICHAEL SHANE DEBAERE,

                Defendant - Appellant.


Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Senior District Judge. (1:13-cr-00329-JAB-1)


Submitted:   December 8, 2014              Decided:     January 8, 2015


Before NIEMEYER and      THACKER,   Circuit   Judges,    and   HAMILTON,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Stacey D. Rubain, QUANDER & RUBAIN, P.A., Winston-Salem, North
Carolina, for Appellant.   Ripley Rand, United States Attorney,
Anand P. Ramaswamy, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     On October 7, 2013, Michael Shane Debaere (Debaere) pled

guilty to one count of accessing images of child pornography by

computer with the intent to view, in violation of 18 U.S.C.

§ 2252A(a)(5)(B) and (b)(2).             On February 25, 2014, the district

court    sentenced      him   to   70   months’       imprisonment.    On   appeal,

Debaere does not challenge his conviction, but challenges his

sentence as procedurally unreasonable.                  We affirm. ∗



                                                 I.

     Debaere’s       presentence        report,         prepared   prior    to   his

sentencing hearing on February 25, 2014, calculated his advisory

sentencing range under the United States Sentencing Guidelines

(the Guidelines) as 97 to 120 months’ imprisonment, based upon a

total offense level of 30 and a criminal history category of I.

        Debaere   did     not      dispute       that   the   presentence    report

correctly calculated his advisory sentencing range.                    However, he

     ∗
       Debaere’s written plea agreement provides that he waives
his right to appeal whatever sentence he receives on any ground.
In his brief, Debaere contends that such appeal waiver provision
is unenforceable because, during his guilty plea hearing, the
district court failed to discuss it with him to ascertain his
understanding of its operation.      Because the government has
expressly declined to seek enforcement of the appeal waiver
provision in Debaere’s plea agreement, we decline to enforce it.
United States v. Jones, 667 F.3d 477, 486 (4th Cir. 2012).




                                             2
requested a downward variance to a short sentence to be served

in a community correction center, followed by an extended term

of    supervised        release.        Debaere       based     his    request       upon     the

following two arguments:                (1) without application of “technical”

Guidelines’             enhancements          based       upon        specific            offense

characteristics, his advisory sentencing range would only have

been    18   to     24    months’       imprisonment;         and     (2)   his      requested

sentence     is     sufficient,         but    not     greater      than    necessary,        to

comply with the sentencing factors under 18 U.S.C. § 3553(a).

       The    government         opposed       Debaere’s       requested     sentence         of

confinement in a community correction center on the basis that

the totality of relevant factors in his case do not justify such

extraordinary           relief    and     such       sentence    would      constitute        an

unwarranted sentencing disparity among defendants with similar

records      who    have      been     found     guilty    of    similar      conduct,        as

disfavored         in    18    U.S.C.     § 3553(a)(6).               However,       expressly

recognizing         and       verifying       that     every     possessor           of     child

pornography sentenced in the United States District Court for

the    Middle      District       of    North        Carolina    received        a    downward

variance in 2013, the government took the position that if the

district court chose to vary downward from Debaere’s advisory

sentencing range, it should select its sentence from level 24,

resulting in an advisory sentencing range of 51 to 63 months’



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imprisonment, “which is half of what the guideline range is in

this   matter,    and    consider      a   sentence    in        that   range    to    be

sufficient . . . .”        (J.A. 38).

       In pronouncing Debaere’s sentence, the district court first

stated that it had considered the calculations resulting from

application of the Guidelines and found they were appropriately

determined.        The      district       court    then     expressly       rejected

Debaere’s     argument      regarding       the    technical        nature      of    the

Guidelines’      offense    level   enhancements           for    specific      offense

characteristics, “not[ing] that although [Debaere] has presented

the    special    offense     characteristics         as    being       technical      in

nature, they’re technical in nature because they cover the types

of conduct that would be involved in criminal activity of this

kind.”    (J.A. 41).       The district court continued to explain its

rationale for rejecting Debaere’s argument as follows:

            With respect to the nature and circumstances of
       the offense, as the Court has noted and is known with
       respect to these type of cases, that is, the victims —
       — innocent victims who are truly at risk of harm in
       order for the types of videos, pictures that are being
       made available to those who seek them, that actual
       children, for the most part, are being used and being
       subject to such abuse.

            The Defendant’s attitude about the technical
       nature does not diminish in any way the seriousness
       with which the Court or Congress took in developing
       the crimes for this offense. While it’s true that the
       Sentencing Commission has had some concern with
       respect to the types of sentences that have been
       imposed   and  even  the   Government  in  this  case
       suggesting a downward departure so there would not be

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     a disparity amongst the various defendants, the Court
     nevertheless finds that the activity in this case is
     serious and harmful both to society and to the
     children involved.

(J.A. 41-42).

     With respect to Debaere’s history and characteristics, the

district court stated that it found Debaere has family support

and does not have a substantial criminal history.               The district

court then went on to state that it has noted in similar cases

that in order to avoid sentencing disparity it will sentence

outside of Debaere’s advisory sentencing range.                 However, the

district court declared,

     [it] will impose a sentence in this case that is
     sufficient, but not greater than necessary, to meet
     the sentencing objectives of 3553 taking into account
     the need for punishment and deterrence, particularly
     deterrence as to other individuals who would choose to
     engage in such criminal activity that’s harmful to
     society and to the children involved. The Court will
     take into account the need for any psychological
     assistance this Defendant may have to help him address
     the conduct that he’s engaged in in this case.

(J.A. 42-43).

     The     district   court   then       announced   that,    for   reasons

previously stated, it would depart from the advisory sentencing

range   as    a   variance   and   sentence      Debaere   to    70   months’

imprisonment, followed by 15 years of supervised release, which

sentence the district court expressly found to be appropriate

and sufficient, but not greater than necessary.




                                       5
                                                II.

      On appeal, Debaere challenges only his sentence and does so

on    the    single           ground    that      the       district    court        failed     to

adequately explain its reasons for sentencing him to 70 months’

imprisonment,           and      therefore,           his    sentence       is    procedurally

unreasonable.            As relief, Debaere seeks to have his sentence

vacated and his case remanded for a new sentencing hearing.

       We review the procedural reasonableness of a sentence for

abuse of discretion.                   Gall v. United States, 552 U.S. 38, 52

(2007).          Of    relevance       in   the       present    appeal,      a     sentence    is

procedurally unreasonable, and therefore an abuse of discretion,

if the district court “fail[s] to adequately explain the chosen

sentence——including an explanation for any deviation from the

Guidelines range.”               Id. at 51.           In order to adequately explain

its   chosen          sentence,      the    district         court    “must      place   on    the

record      an    individualized            assessment        based    on     the    particular

facts of the case before it.”                     United States v. Carter, 564 F.3d

325, 330 (4th Cir. 2009) (internal quotation marks omitted).                                    As

we explained in Carter, the explanation need not be elaborate or

lengthy     but        must    be    adequate      to       permit   meaningful       appellate

review.          Id.     The sentencing “court must demonstrate that it

considered the parties’ arguments and had a reasoned basis for

exercising        its     own       legal   decisionmaking           authority.”         United



                                                  6
States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010) (internal

quotation marks and alteration marks omitted).

     Our     careful      review        of     the      record     discloses          that    the

district court adequately explained its chosen sentence of 70

months’ imprisonment.              There is no dispute that the district

court correctly calculated Debaere’s advisory sentencing range

under     the    Guidelines        as     97       to   120      months’     imprisonment.

Moreover, the record makes clear that in determining Debaere’s

downward variant sentence of 70 months’ imprisonment from that

range,     the    district        court        considered:          (1)     his        advisory

sentencing       range;    (2)    the     parties’         arguments      for     a    downward

variant     sentence      from     that        range;      (3)     the     need       to     avoid

unwarranted sentencing disparities among defendants with similar

records who have been found guilty of similar conduct; (4) the

particular       facts    of     Debaere’s         case;    and    (5)     the    sentencing

factors under § 3553(a).                In sum, the district court placed on

the record an individualized assessment of Debaere’s case based

upon the particular facts of his case which provides a rationale

tailored to Debaere’s case and is adequate to permit meaningful

appellate review.          Accordingly, we reject Debaere’s contention

that his sentence is procedurally unreasonable and affirm his

sentence.

        We dispense with oral argument because the facts and legal

contentions      are     adequately       presented         in    the    materials         before

                                               7
this   court   and   oral   argument       would   not   aid   the   decisional

process.

                                                                       AFFIRMED




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