     Case: 17-20312       Document: 00514576226         Page: 1     Date Filed: 07/30/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                         United States Court of Appeals

                                     No. 17-20312
                                                                                  Fifth Circuit

                                                                                FILED
                                   Summary Calendar                         July 30, 2018
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                  Plaintiff - Appellee

v.

BRADY LEE PEYTON,

                                                  Defendant - Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:16-CR-36-1


Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Brady Lee Peyton challenges his concurrent sentences of 180 and 120
months’ imprisonment, following his guilty-plea conviction for distributing,
receiving,    and     possessing      child    pornography,       in    violation          of      18
U.S.C. §§ 2252A(a)(2)(B), (a)(5)(B), and (b)(1)-(2). Peyton contends his total
sentence—which resulted from a downward departure pursuant to Sentencing
Guidelines §§ 5H1.3, 5H1.11, and 5K2.0—is substantively unreasonable.


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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                                  No. 17-20312

      Although post-Booker, the Guidelines are advisory only, the district
court must avoid significant procedural error, such as improperly calculating
the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 48–51
(2007). If no such procedural error exists, a properly preserved objection to an
ultimate sentence is reviewed for substantive reasonableness under an abuse-
of-discretion standard. Id. at 51; United States v. Delgado-Martinez, 564 F.3d
750, 751–53 (5th Cir. 2009). In that respect, for issues preserved in district
court, its application of the Guidelines is reviewed de novo; its factual findings,
only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751,
764 (5th Cir. 2008).
      Peyton claims the Guideline applicable to child pornography offenses,
Guideline § 2G2.2 (possessing and trafficking material involving the sexual
exploitation of minors), lacks an empirical basis, fails to distinguish between
the least and most culpable defendants, and results in unreasonable and
excessive sentences. (Further, in his reply brief, he presents the additional
issues that the court erred in giving “considerable weight” to the applicable
Guidelines range, refusing to adequately explain its reasons for imposing the
sentence, and rejecting Peyton’s claims under Guideline § 2G2.2. We do not
consider these issues because they were raised for the first time in Peyton’s
reply brief. United States v. Jackson, 426 F.3d 301, 304 n.2 (5th Cir. 2005).)
      The assertion that Guideline § 2G2.2 lacks an empirical basis and,
therefore, does not sufficiently distinguish among the relative culpability of
child pornography offenders is insufficient to establish Peyton’s sentence is
substantively unreasonable. United States v. Miller, 665 F.3d 114, 119–23 (5th
Cir. 2011). Further, although he attempts to minimize his conduct of solely
viewing child pornography, our court noted in Miller that “real children are
actually being abused and violated when pornographic images are made” and



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                                 No. 17-20312

“[t]ragically, the reality is that there is a huge demand for ‘fresh’ faces and
images”. Id. at 123. Peyton asserts what is essentially a policy disagreement
with the Guidelines, and the court was within its discretion to reject it. Id. at
122–23.
      Peyton has not shown that, in imposing a downward-departure sentence,
the court did not account for a factor that should have received significant
weight, gave significant weight to an irrelevant or improper factor, or
committed clear error of judgment in balancing sentencing factors. United
States v. Hawkins, 866 F.3d 344, 350 (5th Cir. 2017). Therefore, he has not
overcome the presumption that his sentence is reasonable. Gall, 552 U.S. at
51; Hawkins, 866 F.3d at 350.
      AFFIRMED.




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