                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                    December 23, 2015
                      UNITED STATES COURT OF APPEALS
                                                                   Elisabeth A. Shumaker
                                                                       Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                      No. 15-7003
                                              (D.C. No. 6:14-CR-00027-RAW-1)
 JAMES CHRISTOPHER COOKE,                                (E.D. Okla.)

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, BACHARACH, and MORITZ, Circuit Judges.


      Defendant-Appellant James Christopher Cooke pled guilty to one count of

possession of child pornography, 18 U.S.C. §§ 2252(a)(4)(B) and (b)(2), and was

sentenced to 97 months’ imprisonment and 5 years’ supervised release. In

addition, Mr. Cooke was ordered to pay $4,627.72 in restitution. He now appeals

arguing that his sentence is substantively unreasonable and the conditions of

supervised release are not supported by factual findings. 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        This order and judgment is not binding precedent, except under the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.
                                    Background

      In March 2014, agents from the Federal Bureau of Investigation arrested

Mr. Cooke after an undercover investigation conducted online revealed that he

was downloading and sharing images of child pornography. See II Aplt. App. 5.

An examination of Mr. Cooke’s computer revealed 3,133 images and two videos

of child pornography. Id. at 7. Mr. Cooke pled guilty to one count of possession

of child pornography before a magistrate judge. I Aplt. App. 12–13. According

to a presentence investigation report (PSR), Mr. Cooke’s offense level was 30 1

and he had no criminal history. See II Aplt. App. 7–9. The indicated Guidelines

range was 97 to 121 months. 2 Id. at 11. Mr. Cooke objected, arguing that

enhancements for computer use and the character and amount of images apply to

most offenders who possess child pornography, simply because of the way child

pornography is typically consumed. See Gov’t Supp. App. 10. Mr. Cooke also

filed a sentencing memorandum. II Aplt. App. 90–101. He argued that his

rehabilitation, community service, and acceptance of responsibility should reduce

      1
          To reach offense level 30, the PSR started with base offense level 18,
added two levels for possession of material involving a prepubescent minor,
added two levels for distribution of child pornography, added four levels for
possession of sadistic images or masochistic depictions, added two levels for use
of a computer, added five levels for possession of 600 images or more, and
finally, subtracted three levels for acceptance of responsibility. See II Aplt. App.
7–9; see also U.S.S.G. §§ 2G2.2, 3E1.1.
      2
         However, Mr. Cooke’s maximum sentence was actually capped at the
statutory maximum of 120 months under the Guidelines. See U.S.S.G.
§ 5G1.1(a).

                                        -2-
his sentence. Id. at 91–92. He maintained the recommended range was

unreasonable and overstated the seriousness of the offense. See id. at 97. He

attached a report from his clinical therapist recommending leniency. Id. at

99–101.

      At Mr. Cooke’s sentencing hearing, the court overruled his objection to the

use of certain enhancements in the PSR to calculate the offense level, finding that

his actions warranted the increases. I Aplt. App. 62. The court then heard

argument on the request for a “departure and/or variance,” id. at 63, considered

numerous letters in support of Mr. Cooke, id. at 64, and heard testimony from

three character witnesses and Mr. Cooke’s clinical therapist, id. at 66. The court

also took note of the written statements from the victims of child pornography

and the government’s position on Mr. Cooke’s sentence. Id. at 104. Finding no

circumstances warranting a reduction, the district court rejected Mr. Cooke’s

request for a variance. 3 See id. at 106. The court also imposed standard and

specialized conditions upon release, including the following special conditions

relevant to this appeal: (1) Mr. Cooke must attend and participate in an approved

mental health or sex offender treatment program, (2) Mr. Cooke cannot possess or

use a computer with online access without his probation officer’s prior written

approval, (3) Mr. Cooke cannot possess or own camera equipment without his

      3
        Because no specific grounds within the Guidelines for a downward
departure were urged, the court construed Mr. Cooke’s motion as one for a
downward variance. See I Aplt. App. 103.

                                        -3-
probation officer’s approval, (4) Mr. Cooke cannot view, purchase, possess, or

distribute any form of pornography, and (5) Mr. Cooke cannot associate with

children under 18 years old except in the presence of an approved adult who is

aware of his conviction. Id. at 35–36.

      Mr. Cooke moved to correct his sentence under Fed. R. Civ. P. 35, but the

court denied the motion for lack of jurisdiction because it was not ruled upon

within the fourteen-day time limit. Id. at 124–26. This appeal follows.



                                    Discussion

      On appeal, Mr. Cooke argues that his sentence is substantively

unreasonable and that the standard and specialized conditions of his supervised

release imposed by the district court are not supported by any factual findings.

                          A. Substantive Reasonableness

      Since the Supreme Court deemed the Sentencing Guidelines advisory in

United States v. Booker, 543 U.S. 220 (2005), district courts have been free to

apply any sentence that is reasonable in light of the 18 U.S.C. § 3553(a)

sentencing factors. Reasonableness has both procedural and substantive

components, see United States v. Smart, 518 F.3d 800, 803 (10th Cir. 2008), but

Mr. Cooke only challenges the substantive reasonableness of his 97-month

sentence. A sentence may be presumed substantively reasonable when it falls

within the correctly calculated range of the Guidelines, as Mr. Cooke’s sentence

                                         -4-
does here. See Gall v. United States, 552 U.S. 38, 51 (2007). Mr. Cooke may

rebut that presumption, however, by showing that the § 3553(a) factors justified a

lower sentence. United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006).

We review a district court’s determination for an abuse of discretion. United

States v. Haley, 529 F.3d 1308, 1311 (10th Cir. 2008). This is a deferential

standard of review, and Mr. Cooke must show the district court’s judgment was

“arbitrary, capricious, whimsical, or manifestly unreasonable.” Id. (quoting

United States v. Muñoz-Nava, 524 F.3d 1137, 1146 (10th Cir. 2008)). Mr. Cooke

attempts to do so by arguing his 97-month sentence does not comply with the

§ 3553(a) factors for two reasons: first, the recommended Guidelines for

possession of child pornography violate congressional will by making it nearly

impossible to obtain a minimum sentence; and second, the unique facts of his case

were not taken into account. We disagree, finding the district court acted within

its discretion.

       The premise of Mr. Cooke’s argument is that Congress permits those

convicted of possession of child pornography to face a punishment ranging from a

fine to ten years’ imprisonment. See 18 U.S.C. § 2252(b)(2) (stating wrongdoers

“shall be fined under this title or imprisoned not more than 10 years, or both”).

But defendants convicted of possession of child pornography, he maintains, rarely

serve noncustodial sentences despite congressional intent. See, e.g., United

States v. Elmore, 743 F.3d 1068, 1076 (6th Cir. 2014) (noting a Sentencing

                                        -5-
Commission report found that “96.6 percent of first-time

child-pornography-possession convictions led to at least some prison time” (citing

U.S. Sentencing Commission, Federal Child Pornography Offenses (2012)).

Relying on United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010), Mr. Cooke

blames this skewed sentencing scheme on the Guidelines enhancements in

U.S.S.G. § 2G2.2, which increased his sentence because his offense involved a

computer with more than 600 images, including some images depicting

prepubescent minors and some depicting sadistic or masochistic conduct. Mr.

Cooke alleges these enhancements apply to the vast majority of offenders, forcing

first-time offenders to serve disproportionately long sentences.

      While Mr. Cooke is correct that some courts have questioned the efficacy

of these enhancements, he has not shown that their application here is necessarily

unreasonable. To be sure, the district court has discretion to depart from the

Guidelines because of a policy disagreement. Kimbrough v. United States, 552

U.S. 85, 109 (2007); United States v. Morrison, 771 F.3d 687, 693 (10th Cir.

2014). The court has the same discretion to remain within Guidelines,

notwithstanding a defendant’s policy objection. Morrison, 771 F.3d at 693.

Furthermore, this court has refused to categorically reject the enhancements in

U.S.S.G. § 2G2.2. See United States v. Grigsby, 749 F.3d 908, 911 (10th Cir.

2014), cert. denied, 135 S. Ct. 214 (2014).

      Mr. Cooke’s second claim—that the court ignored the circumstances of his

                                        -6-
case—is belied by the record. At Mr. Cooke’s sentencing, the district court

allowed four witnesses to speak on his behalf, reviewed a thick stack of letters,

and listened to a lengthy statement from Mr. Cooke himself. The court stated that

it had considered the circumstances of the offense as well as Mr. Cooke’s

characteristics and lack of criminal history. I Aplt. App. 118. The court

recognized it was not bound by the Guidelines but said it looked to the Guidelines

to ensure similarly situated defendants were not sentenced inconsistently. Id.

Finally, the court handed down a sentence at the bottom of the Guidelines range

that reflected the § 3553(a) factors. Id. at 118–19. The district court properly

exercised its discretion.

                        B. Conditions of Supervised Release

      Second, Mr. Cooke argues the standard and special conditions imposed by

the district court during his five-year term of supervised release should be vacated

or reconsidered because they are not supported by factual findings. Courts are

given “broad discretion” to set conditions of supervised release, see United States

v. Butler, 694 F.3d 1177, 1184 (10th Cir. 2012), but these conditions must be

reasonably related to the offense, must not unnecessarily deprive a defendant of

liberty, and must be consistent with policy statements issued by the Sentencing

Commission, see 18 U.S.C. § 3583(d).

      We have two standards of review for conditions of supervised release.

When the defendant timely objects to the condition at sentencing, we review for

                                        -7-
abuse of discretion. United States v. Bear, 769 F.3d 1221, 1226 (10th Cir. 2014).

When the defendant does not object, however, we review only for plain error.

United States v. Martinez-Torres, 795 F.3d 1233, 1236 (10th Cir. 2015).

      Mr. Cooke concedes that he did not object to any conditions of release at

his sentencing, therefore, plain-error review is indicated. On appeal, however,

Mr. Cooke does not argue, let alone establish, that his conditions of supervised

release constitute plain error—specifically that conditions imposed were

“(1) error, (2) that is plain, which (3) affects substantial rights, and which

(4) seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Mike, 632 F.3d 686, 691–92 (10th Cir. 2011)

(quoting United States v. Gonzalez–Huerta, 403 F.3d 727, 732 (10th Cir. 2005)

(en banc)).

      Without a developed argument along these lines, we will not consider plain

error. See Somerlott v. Cherokee Nation Distribs., Inc., 686 F.3d 1144, 1151–52

(10th Cir. 2012). In other words, “the failure to argue for plain error and its

application on appeal . . . surely marks the end of the road for an argument for

reversal not first presented to the district court.” Richison v. Ernest Grp., Inc.,

634 F.3d 1123, 1131 (10th Cir. 2011).




                                          -8-
AFFIRMED.

            Entered for the Court


            Paul J. Kelly, Jr.
            Circuit Judge




             -9-
