                                                                 FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                                TENTH CIRCUIT                              December 18, 2014
                       ___________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
v.                                                            Nos. 13-3201
WILLIAM MORAIN, SR.,                               (D.C. No. 2:12-CR-20074-CM-1)
                                                              (D. Kan.)
       Defendant-Appellant.
                    ____________________________________

                            ORDER AND JUDGMENT*
                       ____________________________________

Before McHUGH, McKAY, and BALDOCK, Circuit Judges.
                ____________________________________

       Defendant William Morain, Sr., challenges his within-guideline sentence for

possession and distribution of child pornography. He mounts a two-prong attack on the

substantive reasonableness of his sentence. First, he argues his sentence is not entitled to

a presumption of reasonableness because U.S.S.G. § 2G2.2, the guideline used to

calculate his offense level, is flawed. Second, he contends, presumption or no, his

sentence is substantively unreasonable because it does not comport with 18 U.S.C.

§ 3553(a). Even disregarding the presumption of reasonableness, however, we cannot

say Defendant’s sentence rose to the level of an abuse of discretion.             Therefore,

exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm.

*
  This order and judgment is not binding precedent, except under the doctrines of law of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.
                                             I.

       Defendant pled guilty to one count of distributing child pornography in violation

of 18 U.S.C. § 2252(a)(2) and was convicted after a bench trial of one count of

possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). Defendant’s

child pornography collection, between his computer and other media devices, contained

592 images and 24 videos (totaling over 110 minutes).             The collection included

depictions of prepubescent children being forced to perform oral sex or being penetrated

by an adult penis. One of the videos was a bondage rape video in which a young girl

struggles against an adult male who ties her up, forces her to perform oral sex, and then

rapes her. Defendant admitted to sharing some of this collection over Limewire and

actively trading from this collection using Yahoo! Messenger. The Presentence Report

(“PSR”) calculated Defendant’s offense level based on U.S.S.G. § 2G2.2. Based on the

PSR and an additional offense level reduction for acceptance of responsibility, the district

court found Defendant had a criminal history category of I and a total offense level of 34.

This yielded a guideline imprisonment range of 151 to 188 months. Defendant filed a

sentencing memorandum requesting a sentence of 60 months, the statutory minimum for

his distribution charge.1    See 18 U.S.C. § 2252(b)(1).        The bulk of Defendant’s

memorandum attacked § 2G2.2, citing the Sentencing Commission’s own criticism of

that guideline in a 2012 report to Congress, and also asserted that a statutory minimum

sentence would satisfy the sentencing purposes outlined in 18 U.S.C. § 3553(a).


1
 Defendant’s possession conviction did not trigger a statutory minimum prison sentence.
See 18 U.S.C. § 2252(b)(2).
                                            -2-
       At sentencing, the court heard the parties’ arguments and analyzed Defendant’s

case in light of the § 3553(a) factors. The court then acknowledged that the Sentencing

Commission’s recommendations regarding the child pornography guidelines “appear to

be a current topic for Congress that they have not yet acted on,” but concluded that

“[what is] before the court now is the . . . sentencing guidelines that are in place.” As

such, the court pointed out that Defendant was “asking that the court vary from the

guideline range.” The court then acknowledged that “there’s some merit to defendant’s

arguments, and the court has considered that.” Nevertheless, based on the evidence and

the parties’ arguments, the court found “a sentence at the low end of the guideline range

. . . is appropriate.” Furthermore, the court found a sentence of 151 months for the

distribution offense was “sufficient but not greater than necessary” to satisfy the

sentencing purposes of § 3553(a)(2)(A), (B), and (C). The court then imposed a 151-

month sentence of imprisonment for the distribution charge and a concurrent 120-month

sentence for the possession conviction, as well as a five-year term of supervised release

to follow Defendant’s release from prison. Defendant timely appealed.

                                             II.

       On appeal, Defendant argues only that his sentence is substantively unreasonable

and that we should therefore vacate it and remand for resentencing consistent with 18

U.S.C. § 3553(a). When reviewing a sentence of imprisonment for reasonableness, we

typically “‘first ensure that the district court committed no significant procedural error,’”

such as “‘improperly calculating the Guidelines range[ or] failing to consider the

§ 3553(a) factors,’” before addressing whether the sentence is substantively reasonable.

                                            -3-
United States v. Kieffer, 681 F.3d 1143, 1165 (10th Cir. 2012), cert. denied, 133 S. Ct.

996 (2013) (alteration omitted) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)).

Moreover, Defendant’s sentencing argument “bears significant procedural stripes in that

he seems to allege that the district court did not properly consider the sentencing factors

of 18 U.S.C. § 3553(a)(2)” in light of the alleged flaws in § 2G2.2 and the parsimony

clause of § 3553(a).2 United States v. Palomino-Rodriguez, 301 F. App’x 822, 823 n.1

(10th Cir. 2008) (unpublished).      Nevertheless, Defendant expressly disavowed, and

therefore waived, any procedural challenge to his sentence at oral argument. See United

States v. Turrietta, 696 F.3d 972, 974 n.2 (10th Cir. 2012) (“Whereas forfeiture is the

failure to make the timely assertion of a right, waiver is the intentional relinquishment or

abandonment of a known right.” (internal quotation marks omitted)). Because Defendant

waived any procedural error argument, and because we do not detect any ourselves, we

proceed directly to the substantive reasonableness of Defendant’s sentence.3


2
     The parsimony clause of § 3553(a) states: “The court shall impose a sentence
sufficient, but not greater than necessary, to comply with the purposes set forth in
[§ 3553(a)(2)] . . . .”
3
   Even were we to read Defendant’s brief as arguing the court committed a sort of
procedural error by deferring to what he believes is a flawed guideline, see Def’s Br. at
15–16, that challenge would fail. “[W]hile district courts perhaps have the freedom to
sentence below the child-pornography guidelines based on disagreement with the
guidelines . . . they are certainly not required to do so.” United States v. Huffstatler, 571
F.3d 620, 624 (7th Cir. 2009) (per curiam); see also United States v. Escobar-Aguirre,
409 F. App’x 209, 212 (10th Cir. 2010) (unpublished) (“Although a district court is
entitled to vary downward from the guidelines based on policy disagreement with the
guidelines, it is also entitled to defer to the policy judgment of the guidelines.” (internal
citations and quotation marks omitted)). Even in United States v. Dorvee, 616 F.3d 174
(2d Cir. 2010), on which Defendant relies heavily, the Second Circuit acknowledged that
“in light of the Sentencing Commission’s relative expertise, sentencing courts ‘must
                                            -4-
                                             A.

       Defendant attacks the substantive reasonableness of his sentence in two steps.

First, he asserts we should not apply any presumption of reasonableness to his within-

guideline sentence because of what he considers the “inherent flaws” in U.S.S.G.

§ 2G2.2.   Second, he argues that, presumption or no, his sentence is substantively

unreasonable in light of the § 3553(a) factors.

       We need not resolve Defendant’s first contention. We have held “a sentence that

is properly calculated under the Guidelines is entitled to a rebuttable presumption of

reasonableness,” and explained that a defendant may rebut this presumption “by

demonstrating that the sentence is unreasonable when viewed against the other factors

delineated in § 3553(a).” United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006);

cf. Gall, 552 U.S. at 51 (“If the sentence is within the Guidelines range, the appellate

court may, but is not required to, apply a presumption of reasonableness.” (emphasis

added)). But even assuming we could disregard this presumption based on a showing

that the guideline used to calculate Defendant’s sentencing range was indeed flawed,

under a substantive reasonableness analysis, Defendant must nevertheless show the

sentencing court abused its discretion by imposing the chosen sentence in light of the

§ 3553(a) factors. See, e.g., United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008)


consult those Guidelines and take them into account when sentencing.’” Id. at 188
(quoting United States v. Booker, 543 U.S. 220, 245 (2005)). The district court here did
just that.




                                            -5-
(en banc) (declining to adopt a presumption of reasonableness for within-guideline

sentences, but noting that, regardless, “[t]he abuse of discretion standard applies to all

sentencing decisions, whether the sentence is inside the Guidelines range or outside of

it”); cf. United States v. Flores-Escobar, 397 F. App’x 479, 481 (10th Cir. 2010)

(unpublished) (“[W]e cannot conclude that a sentence is substantively unreasonable by

disagreeing with the Sentencing Guidelines in the abstract, rather than considering the

particular sentence in light of the facts and § 3553(a) factors.”). Defendant cannot make

such a showing on this record.

                                             B.

       Again, even disregarding arguendo the within-guideline-sentence presumption of

reasonableness, we still review the substantive reasonableness of Defendant’s sentence

under the deferential abuse-of-discretion standard. See, e.g., United States v. Gantt, 679

F.3d 1240, 1249–51 (10th Cir. 2012) (affirming on abuse-of-discretion review a 20-year

sentence—13 years higher than the guideline-recommended sentence of 7 years—as

substantively reasonable); see also Carty, 520 F.3d at 993. “A district court abuses its

discretion when it renders a judgment that is arbitrary, capricious, whimsical, or

manifestly unreasonable. We will reverse the district court’s determination only if the

court exceeded the bounds of permissible choice, given the facts and the applicable law

in the case at hand.” United States v. Regan, 627 F.3d 1348, 1352 (10th Cir. 2010)

(internal citations and quotation marks omitted). This is no easy hill to climb. Indeed,

“[t]he fact that the appellate court might reasonably have concluded that a different

sentence was appropriate is insufficient to justify reversal of the district court.” Gall, 552

                                             -6-
U.S. at 51.   Such deference makes good sense.        “A sentencing judge has greater

familiarity with the case and the defendant before it than this court or the Sentencing

Commission and is therefore ‘in a superior position to find facts and judge their import

under § 3553(a) in the individual case.’” United States v. Munoz-Nava, 524 F.3d 1137,

1148 (10th Cir. 2008) (quoting Gall, 552 U.S. at 51).           Applying this standard to

Defendant’s case, we cannot say the district court abused its discretion by sentencing

Defendant to 151 months’ imprisonment for distributing child pornography.

      In arguing the § 3553(a) factors, Defendant first argues that for purposes of “just

punishment,” see § 3553(a)(2)(A), his actions do not constitute an aggravated version of

distribution. Rather, Defendant maintains he is a “typical,” “small-scale distribution”

offender. Disregarding Defendant’s guideline sentencing range, his distribution offense

exposed him to a statutory sentencing range of 60 to 240 months (five to 20 years). 18

U.S.C. §2252(b)(1). His 151-month sentence falls almost squarely in the middle of that

statutory range. Regardless of whether sharing and actively trading online from a child

pornography collection of 592 photos and 24 videos could fairly be classified “small-

scale” distribution, and even assuming Defendant is merely a typical offender, we fail to

see how imposing a sentence in the middle of the statutory range on a typical offender is

unjust, let alone “exceeded the bounds of permissible choice, given the facts and the

applicable law in the case at hand.” Regan, 627 F.3d at 1352.

      Next, Defendant argues “there is no reason to think” a statutory minimum

sentence of five years would be insufficient to meet the deterrence sentencing factor

under § 3553(a)(2)(B), and thus “the parsimony clause instructs that a five year sentence

                                           -7-
is appropriate here.” But this argument ignores the deferential standard by which we

review Defendant’s sentence.      Again, “[t]he fact that [we] might reasonably have

concluded that a different sentence was appropriate is insufficient to justify reversal of

the district court.” Gall, 552 U.S. at 51; see also United States v. Nghiem, 432 F. App’x

753, 757 (10th Cir. 2011) (unpublished) (“Even if a lesser sentence may have been

reasonable in this case, so may a greater sentence. There will almost always be a range

of reasonable sentences.”). Distributing child pornography is a heinous crime, and the

images and videos Defendant possessed and distributed are some of the most heinous

imaginable. Imposing a 151-month sentence to deter Defendant and others from sharing

and actively trading this content does not strike us as arbitrary, capricious, whimsical, or

manifestly unreasonable, let alone outside the bounds of permissible choice.

       Defendant also argues he poses little to no risk of recidivism and therefore there is

little to no need to protect the public under § 3553(a)(2)(C) from future crimes he might

commit. But the court below found the evidence mixed as to whether Defendant might

recidivate. Given this mixed recidivism evidence, we cannot say the sentencing court,

which was in a superior position to weigh the facts of Defendant’s case under § 3553(a),

exceeded the bounds of all permissible choice by imposing a sentence in the middle of

the statutory sentencing range as opposed to a statutory minimum sentence.4


4
  Defendant also correctly points out that a sentencing court may not “lengthen[] a prison
term to promote an offender’s rehabilitation.” Tapia v. United States, 131 S. Ct. 2382,
2391 (2011). But we see no indication in the record that the court justified the sentence
imposed based on the need for rehabilitation under § 3553(a)(2)(D). Rather, the court
found at sentencing that a 151-month sentence satisfied the parsimony doctrine in light of
§§ 3553(a)(2)(A), (B), and (C). The court never mentioned § 3553(a)(2)(D).
                                            -8-
      Finally, Defendant relies heavily on the need to avoid unwarranted sentencing

disparities under § 3553(a)(6). Importantly, Defendant does not argue the court failed to

consider or improperly considered possible unwarranted sentencing disparities. Indeed,

that would be a procedural argument—which Defendant expressly disavowed. Rather,

Defendant asks us to reconsider his sentencing disparity argument for purposes of

substantive reasonableness. The gist of his argument is that, given the alleged flaws in

§ 2G2.2, “by imposing a within-[guideline] sentence, the District Court was actually

causing an unwarranted sentencing disparity.” Defendant’s disparity argument relies on

the Second Circuit’s decision in United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010),

and a finding in a 2012 Sentencing Commission report that “[b]elow range sentences

were imposed in nearly two-thirds” of non-production child pornography cases in 2011,

United States Sentencing Commission, Report to Congress: Federal Child Pornography

Offenses 317 (Dec. 2012), available at http://www.ussc.gov/sites/default/files/pdf/news/

congressional-testimony-and-reports/sex-offense-topics/201212-federal-child-pornograph

y-offenses/Full_Report_to_Congress.pdf (last visited December 13, 2014).

      Dorvee, for its part, is easily distinguishable.      In Dorvee, the district court

committed procedural error in calculating the defendant’s sentence because it believed

the defendant’s guideline sentencing range for distribution of child pornography was 262

to 327 months, when in fact the guideline sentence was the statutory maximum of 240

months, less time served.     See 616 F.3d at 180–82.       Moreover, in concluding the

defendant’s sentence was also substantively unreasonable, the Second Circuit pointed out

that the district court, through its explanation of the sentence, appeared to have punished

                                            -9-
him “as though he already had, or would, sexually assault a child, despite medical

testimony to the contrary.” Id. at 185. The Second Circuit then went on to explain its

concern that “§ 2G2.2 sentencing enhancements cobbled together . . . routinely result in

Guidelines projections near or exceeding the statutory maximum, even in run-of-the-mill

cases.” Id. at 186. As such, that court expressed concern that

       [b]y concentrating all offenders at or near the statutory maximum, § 2G2.2
       eviscerates the fundamental statutory requirement in § 3553(a) that district
       courts consider ‘the nature and circumstances of the offense and the history
       and characteristics of the defendant’ and violates the principle, reinforced in
       Gall, that courts must guard against unwarranted similarities among
       sentences for defendants who have been found guilty of dissimilar conduct.

Id. at 187.

       Although his sentence was calculated under the same guideline, Defendant’s case

is a far cry from Dorvee. Defendant does not argue that the district court committed any

procedural error in calculating his sentence, nor that it appeared to punish him for actions

or tendencies not supported by the record. More importantly, Defendant’s 151-month

sentence is far below the statutory maximum of 240 months. As we explained above,

Defendant fancies himself a “typical” child pornography distribution offender, and he

received a sentence in the middle of the statutory sentencing range for that offense.

Dorvee, therefore, bears little weight on the substantive reasonableness of Defendant’s

particular sentence in light of the § 3553(a) factors.

       Moreover, the Sentencing Commission’s findings prove too much for Defendant;

indeed, they show that in around one-third of all non-production child pornography cases

offenders like Defendant receive a within-guideline sentence. Even disregarding the


                                             -10-
presumption that generally attaches to within-guideline sentences, we cannot say that

imposing a sentence at the low end of a range the courts consider appropriate in around

one-third of all cases—on a concededly “typical” offender—created a sentencing

disparity so egregious that it “exceeds the bounds of permissible choice” available to the

sentencing court. Regan, 627 F.3d at 1352.

      In sum, even having reviewed Defendant’s sentence in light of the § 3553(a)

factors without regard to the presumption of reasonableness that usually attaches to

within-guideline sentences, we still cannot say the sentencing court abused its discretion

by imposing a 151-month sentence in Defendant’s case.

      AFFIRMED.

                                         Entered for the Court,



                                         Bobby R. Baldock
                                         United States Circuit Judge




                                          -11-
