                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________            FILED
                                               U.S. COURT OF APPEALS
                            No. 09-13161         ELEVENTH CIRCUIT
                                                     JULY 19, 2010
                        Non-Argument Calendar
                                                      JOHN LEY
                      ________________________
                                                        CLERK

                 D. C. Docket No. 08-00107-CR-3-MCR


UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

DALE BRUNETTE,

                                                        Defendant-Appellant.


                      ________________________

               Appeal from the United States District Court
                   for the Northern District of Florida
                     _________________________

                             (July 19, 2010)

Before EDMONDSON, BLACK and PRYOR, Circuit Judges.
PER CURIAM:



      Dale Brunette (“Defendant”) appeals his sentence of 78 months for

possession of child pornography. Seeing no error in the district court’s sentence,

we affirm.

      During an investigation of child pornography websites, Immigration and

Customs Enforcement (“ICE”) agents discovered that Defendant had made at least

five payments to a website containing child pornography. After executing a search

of Defendant’s residence and examining a laptop computer he surrendered, agents

discovered over a thousand images of child pornography. Defendant admitted all

of these facts, and plead guilty to one count of possession of child pornography.

See 18 U.S.C. § 2252A(a)(5)(B); § 2252(b)(2).

       The probation officer preparing Defendant’s PSI calculated the base

offense level to be 18, with the following alterations: a two-level enhancement for

any images involving prepubescent minors or minors under the age of twelve, per

U.S.S.G. § 2G2.2(b)(2); a four-level enhancement for depictions of sadistic,

masochistic, or violent conduct, per U.S.S.G. § 2G2.2(b)(4); a two-level

enhancement because the offense involved the use of a computer, per U.S.S.G. §

2G2.2(b)(6); a five-level enhancement for involvement of more than 600 images,



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per U.S.S.G. § 2G2.2(b)(7)(D); and a three-level reduction for acceptance of

responsibility, per U.S.S.G. § 3E1.1(a)-(b). The total and adjusted offense level

was 28, with a criminal history of I. This equated to a Guidelines range of 78-97

months imprisonment.

      Defendant did not object to the calculation of the Guidelines range, but

argued to the district court that a downward variance was warranted. The district

court rejected Defendant’s arguments for a sentence below the Guidelines and

sentenced Defendant to 78 months’ imprisonment.

      Defendant appealed, arguing that the district court abused its discretion in

choosing his sentence. Among other things, he suggested that the 18 U.S.C.

section 3553(a) sentencing factors militated in favor of a downward variance, that

the district court erroneously considered the Guidelines to be mandatory, and that

the district court presumed that a within-Guidelines sentence was reasonable. See

Gall v. United States, 128 S. Ct. 586, 594–95 & n.3 (2007) (noting that the

Guidelines are not mandatory and that district judges may not presume that a

within-Guidelines sentence is reasonable). He also contended that the § 2G2.2

child pornography Guideline is flawed in general and as applied to him. Defendant

specifically argued that the child pornography Guideline does not reflect

Congressional intent and that district courts should disregard it as a policy matter:



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Defendant relied on Kimbrough v. United States, 128 S. Ct. 558, 575–76 (2007)

(explaining that district courts may reject the Guidelines’ crack/powder cocaine

sentencing ratio based on a policy disagreement).

      Defendant’s argument that the district court abused its discretion in

following U.S.S.G. § 2G2.2 is meritless. We explained in United States v. Pugh

that the child pornography Guideline does “not exhibit the deficiencies the

Supreme Court identified in Kimbrough.” 515 F.3d 1179, 1201 & n.15 (11th Cir.

2008). And even if those deficiencies did exist, Kimbrough merely permits district

courts to change sentences; they are not required to do so. See Kimbrough, 128 S.

Ct. at 575–76. Here, the district court concluded that Congress intended to punish

child pornography offenders harshly and so declined to disagree with the

Guidelines. This determination is within the district court’s discretion and

constitutes no reversible error.

      Defendant’s challenges to the procedural and substantive reasonableness of

his sentence are also without merit. The district court properly calculated the

Guidelines range, did not treat the Guidelines as mandatory, considered all of the §

3553(a) factors, did not rely on clearly erroneous facts in choosing a sentence, and

adequately explained the sentence it did choose. It has therefore satisfied all

procedural requirements for sentencing. See Gall, 128 S. Ct. at 597. And the



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sentence imposed -- at the low end of the Guidelines range -- was not substantively

unreasonable: the district court did not exhibit “unjustified reliance on any one

section 3553(a) factor” nor did it lack a reasoned evidentiary basis for its decision.

See Pugh, 515 F.3d at 1191. The sentence imposed, therefore, was not

procedurally or substantively unreasonable.

      AFFIRMED.




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