     Case: 16-50343      Document: 00513794785         Page: 1    Date Filed: 12/13/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit

                                    No. 16-50343                             FILED
                                  Summary Calendar                   December 13, 2016
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

IGNACIO GALLEGOS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:15-CR-1058-1


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
       Ignacio Gallegos appeals the concurrent 120-month and 240-month
sentences he received for receipt and distribution of child pornography and
possession of child pornography.          We review preserved arguments that a
sentence is substantively reasonable “under an abuse of discretion standard.”
Gall v. United States, 552 U.S. 38, 51 (2007).




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 16-50343     Document: 00513794785     Page: 2   Date Filed: 12/13/2016


                                  No. 16-50343

      First, Gallegos argues the total 240-month sentence is greater than
necessary because U.S.S.G. § 2G2.2 lacks an empirical basis and produced too
high a guidelines range in his case due to its inclusions of enhancements that
are almost inherent to the nature of child pornography offenses. Our opinion
in United States v. Miller, 665 F.3d 114, 120-23 (5th Cir. 2011), forecloses these
arguments. See United States v. Duke, 788 F.3d 392, 397-98 (5th Cir. 2015)
(recognizing that Miller forecloses the issue whether § 2G2.2 produces
unreasonable sentences because it lacks an empirical basis).
      Second, Gallegos argues that the sentence is substantively unreasonable
because it treats him like a lost cause and does not reflect the mitigating
factors he urged, such as his having lived a relatively isolated life, his
dedication to his immediate family, and his having his family’s support.
However, the district court considered Gallegos’s mitigating evidence and
determined that a total 240-month term of incarceration was fair and
reasonable after considering the § 3553(a) factors, the circumstances of the
case, and Gallegos’s particular circumstances. Gallegos has not demonstrated
that the district court abused its discretion in weighing or balancing the
§ 3553(a) factors. See Duke, 788 F.3d at 398.
      AFFIRMED.




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