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

                             FOR THE TENTH CIRCUIT                        August 25, 2016
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,
                                                             No. 15-3269
v.                                                (D.C. No. 6:14-CR-10205-EFM-1)
                                                              (D. Kan.)
ALFREDO FRANCO, JR.,

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HARTZ, O’BRIEN, and PHILLIPS, Circuit Judges.
      _________________________________

      Defendant Alfredo Franco, Jr., pleaded guilty to one count of receipt and

distribution of child pornography. See 18 U.S.C. § 2252(a)(2). The United States

District Court for the District of Kansas sentenced him to 110 months in prison followed

by 10 years of supervised release, and ordered him to pay restitution of $6,000 and an

assessment of $100. On appeal he argues that the length of his imprisonment is

substantively unreasonable. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.



*
 After examining the briefs and appellate record, this panel has determined unanimously
that oral argument would not materially assist in the determination of this appeal. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted
without oral argument. This order and judgment is not binding precedent, except under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.
       Defendant’s amended presentence investigation report (PSR) calculated his base

offense level to be 22. See U.S.S.G. § 2G2.2(a)(2). It then applied five enhancements for

his specific offense characteristics: 2 levels for pornography that “involved a

prepubescent minor or a minor who had not attained the age of 12 years,” U.S.S.G.

§ 2G2.2(b)(2); 2 levels for distributing child pornography to others, see U.S.S.G.

§ 2G2.2(b)(3)(F); 4 levels for pornography “that portrays sadistic or masochistic conduct

or other depictions of violence,” U.S.S.G. § 2G2.2(b)(4); 2 levels for “use of a

computer,” U.S.S.G. § 2G2.2(b)(6); and 5 levels for having “600 or more images,”

U.S.S.G. § 2G2.2(b)(7)(D). After subtracting 2 levels for acceptance of responsibility,

see U.S.S.G. § 3E1.1(a), and 1 level for assisting authorities, see U.S.S.G. § 3E1.1(b), his

total offense level was 34. Based on his criminal-history category of 1, the sentencing

guidelines suggested a sentencing range of 151 to 188 months.

       At Defendant’s sentencing hearing the district court adopted the PSR and then

addressed the pertinent factors under 18 U.S.C. § 3553(a). It described the nature of the

underlying crimes against the children as “horrific” and “terrifically serious,” Aplt. App.,

Vol. I at 23–24 (sentencing hearing transcript), and said that Defendant’s accessing

videos depicting child pornography helped create a market for the sexual abuse, even if

he did not personally abuse the children. Regarding Defendant’s history and

characteristics, the court observed that he had no prior criminal history and that it had

received an above-average number of letters on his behalf describing his community

involvement and his role in raising his child. It also observed that he had served in the

military in a theater of combat. The court stated that it typically imposed sentences of 15


                                              2
to 20% below the minimum suggested by the guidelines, but that sentencing at the

statutory minimum was not always appropriate. In sentencing Defendant, it varied

downward from the guideline range more than usual, imposing a prison term of 110

months.

      “We review sentences for substantive reasonableness under an abuse-of-discretion

standard.” United States v. Middagh, 594 F.3d 1291, 1294 (10th Cir. 2010) (internal

quotation marks omitted). To be an abuse of discretion, the judgment must be “arbitrary,

capricious, whimsical, or manifestly unreasonable.” United States v. Munoz-Nava, 524

F.3d 1137, 1146 (10th Cir. 2008) (internal quotation marks omitted). Where, as here, the

sentence imposed was below the guidelines, there is a rebuttable presumption that the

sentence is not unreasonably harsh. See United States v. Balbin-Mesa, 643 F.3d 783, 788

(10th Cir. 2011). This presumption may be rebutted only “by demonstrating that the

sentence is unreasonable when viewed against the other factors delineated in § 3553(a).”

United States v. Lewis, 594 F.3d 1270, 1277 (10th Cir. 2010) (internal quotation marks

omitted).

      Defendant argues that § 2G2.2, the governing guideline in this case, is flawed

because it was not developed as a result of empirical study by the United States

Sentencing Commission, and he claims that the guidelines recommend a lesser sentence

for many other offenses that are more heinous. He observes that several district courts

have imposed sentences below the recommended range, and that the Sentencing

Commission itself suggested in a 2012 report to Congress that § 2G2.2 inadequately

distinguishes between the culpability of offenders because many of its enhancements


                                            3
apply to most offenders. Finally, he specifically objects to the five enhancements applied

to him because they apply to the majority of offenders.1

        Defendant’s arguments fail to rebut the presumption that his below-guideline

sentence is reasonable. We have previously stated that the Sentencing Commission’s

report does not “stand for the proposition that any application of § 2G2.2 will yield an

unreasonable sentence.” United States v. Grigsby, 749 F.3d 908, 911 (10th Cir. 2014).

Even if Defendant is correct that frequent application of enhancements for specific

offense characteristics makes them a poor measure for determining offender culpability,

altering the guidelines is ultimately the responsibility of Congress and the Commission.

See id. And the district court clearly shared these concerns about § 2G2.2 by observing

that it always sentences below the minimum suggested by the guidelines (in this case by

27%).

        Nor can we say that his sentence was unreasonable in light of the § 3553(a)

factors. As we stated in Lewis, “[A] reasonable sentencing judge need not give equal

weight to all factors. The heinous nature of the offense in itself can justify a harsh

sentence.” 594 F.3d at 1277. Here, the court described the nature of the underlying

1
  Defendant also argues that he did not intend to distribute child pornography to others.
Although he recognizes that we have held that § 2G2.2(b)(3)(F) “does not require that a
defendant know about the distribution capability of the program he is using to view child
pornography,” United States v. Ray, 704 F.3d 1307, 1311–12 (10th Cir. 2013), he argues
that other circuits require proof of knowingly making child pornography available to
others. But we are bound to follow our circuit’s precedent. See Rezaq v. Nalley, 677
F.3d 1001, 1012 n.5 (10th Cir. 2012) (“[W]e are bound by prior panel decisions absent
superseding en banc review or Supreme Court decisions . . . .”). We note, however, that
under the pending guidelines amendments, § 2G2.2(b)(3)(F) applies only when “the
defendant knowingly engaged in distribution.” Amendments to the Sentencing Guidelines
at 11 (U.S. Sentencing Comm’n Apr. 28, 2016) (effective Nov. 1, 2016).

                                              4
offenses as “horrific” and “terrifically serious.” Aplt. App., Vol. I at 23–24 (sentencing

hearing transcript). And it observed that the sexual abuse of children creates “a lifetime

of difficulties for them.” Id. at 24. Because of Defendant’s complicity in this abuse by

helping create a market for child pornography, we cannot say that the district court

abused its discretion in imposing sentence.

       The judgment of the district court is AFFIRMED.

                                              Entered for the Court


                                              Harris L Hartz
                                              Circuit Judge




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