                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 14-3115
                                      ____________

                            UNITED STATES OF AMERICA

                                             v.

                                  EARL J. CRAYTON,
                                             Appellant
                                    ____________

                       On Appeal from United States District Court
                        for the Western District of Pennsylvania
                           (W.D. Pa. No. 2-12-cr-00138-001)
                        District Judge: Honorable Cathy Bissoon
                                     ____________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 28, 2015

               Before: FISHER, HARDIMAN and ROTH, Circuit Judges.

                                   (Filed: July 14, 2015)
                                       ____________

                                        OPINION*
                                      ____________




       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
FISHER, Circuit Judge.

       Earl J. Crayton appeals his final judgment of sentence, arguing that the District

Court committed procedural error by failing to meaningfully consider arguments he made

in favor of a reduced sentence. We will affirm.

                                              I.

       We write principally for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts that are necessary

to our analysis.

       On September 23, 2013, Crayton pled guilty to a charge of possession of material

depicting the sexual exploitation of a minor, in violation of 18 U.S.C. § 2252(a)(4)(B).

Before sentencing, the Probation Office issued a Presentence Investigation Report

(“PSR”), which calculated Crayton’s total offense level as 28 with a criminal history

category I, yielding an advisory Guidelines range of 78 to 97 months’ imprisonment.

Rather than objecting to the Probation Office’s Guidelines calculation, Crayton instead

argued for a downward variance for several policy-based reasons. Of most relevance to

this appeal, Crayton challenged the application of three enhancements to his Guidelines

calculations: (1) a two-level enhancement for use of a computer under U.S.S.G.

§ 2G2.2(b)(6), (2) a five-level enhancement because the offense involved 600 or more

images under U.S.S.G. § 2G2.2(b)(7)(D), and (3) a four-level enhancement because the

offense involved materials that portrayed sadistic or masochistic conduct or other


                                              2
depictions of violence under U.S.S.G. § 2G2.2(b)(4). Crayton argued that these

enhancements either applied in every child pornography case and resulted in double

counting or otherwise lacked empirical support because they did not reasonably

approximate the seriousness of the offense.

       Crayton also sought a non-incarceration sentence by referencing instances where

courts in the Western District of Pennsylvania and across the country had imposed non-

incarceration sentences or otherwise varied substantially downward in child pornography

cases. Given these other cases, Crayton contended that a downward variance was

necessary to avoid unwarranted sentence disparities under 18 U.S.C. § 3553(a)(6).

       At sentencing, the District Court rejected all but one of Crayton’s arguments. The

District Court agreed with Crayton that the two-level computer enhancement was

unreasonable because it applied in almost every child pornography case. Without the

two-level computer enhancement, the District Court noted that Crayton’s Guidelines

range would be 63 to 78 months’ imprisonment. The District Court then sentenced

Crayton to 78 months in prison followed by ten years of supervised release. Crayton filed

this timely appeal.

                                              II.

       The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We review a sentence’s procedural and




                                              3
substantive reasonableness for abuse of discretion.1 In reviewing a sentence’s procedural

reasonableness, we ensure that the district court (1) correctly calculated the defendant’s

Guidelines range, (2) considered and ruled on motions for departure under the

Guidelines, and (3) exercised its discretion by meaningfully considering the sentencing

factors set forth in 18 U.S.C. § 3553(a), regardless of whether the court actually varies

from the Guidelines sentence.2 The third step requires district courts to “acknowledge and

respond to any properly presented sentencing argument which has colorable legal merit

and a factual basis.”3 If a sentence is procedurally reasonable, we then review it for

substantive reasonableness, reversing “only where no reasonable sentencing court would

have imposed the same sentence on that particular defendant for the reasons the district

court provided.”4

                                            III.

       Crayton argues on appeal that his sentence is procedurally unreasonable because

the District Court failed to meaningfully consider both his argument for a variance to

avoid unwarranted sentencing disparities in child pornography cases and his policy

arguments against application of the aforementioned sentencing enhancements. As

explained below, Crayton’s arguments are unpersuasive.



       1
         United States v. Freeman, 763 F.3d 322, 335 (3d Cir. 2014).
       2
         United States v. Flores-Mejia, 759 F.3d 253, 256 (3d Cir. 2014) (en banc).
       3
         Id. (internal quotation marks omitted).
       4
         Freeman, 763 F.3d at 335 (internal quotation marks omitted).

                                             4
                                            A.

       Crayton first contends that the District Court failed to meaningfully consider his

argument that a significant downward variance was necessary in this case to avoid

unwarranted sentencing disparities. In his sentencing memorandum, Crayton cited a

series of cases from the Western District of Pennsylvania and across the country where

district courts imposed non-incarceration sentences or otherwise varied significantly

downward in child pornography possession cases. According to Crayton, the District

Court failed to consider this argument because its only express reference to disparities

related to a different argument about Crayton’s need to care for his infirm parents.

       This argument is belied by the record. At a general level, the District Court

recognized Crayton’s policy-based arguments, which included his argument that the

Guidelines were unduly harsh in child pornography possession cases, but concluded they

were “generally unpersuasive.”5 The District Court also specifically addressed the

substance of Crayton’s sentencing-disparities argument, stating:

       [E]ven if I were to disregard the [G]uideline[s] range for this offense, as some
       courts have done, I believe the 78-month sentence imposed here is sufficient but
       not greater than necessary to comply with the purposes of [§] 3553 and that this
       sentence accounts for all the information contained in the record and reflects the
       very serious nature of Defendant’s conduct and the needs for just punishment,
       public protection, deterrence, and rehabilitation.6




       5
           App. 189.
       6
           App. 190 (emphasis added).

                                             5
In other words, the District Court acknowledged Crayton’s argument for disregarding the

Guidelines range entirely and imposing a non-incarceration or significantly reduced

sentence and noted that other courts in other cases have followed this approach. The

District Court simply rejected the argument based on the facts of Crayton’s case and its

assessment of the other § 3553(a) factors.

       Additionally, by correctly calculating and reviewing the Guidelines range, the

District Court “necessarily gave significant weight and consideration to the need to avoid

unwarranted disparities.”7 Although the District Court might have said more, its

conclusion that a within-Guidelines sentence was appropriate here despite examples of

below-Guidelines sentences in other cases was legally sufficient.8

       Finally, Crayton provided minimal information about the other cases he relied on

in making his disparities argument. He merely included the defendants’ convictions of

child pornography crimes, their Guidelines ranges, and their sentences. In so doing,

Crayton did not provide enough information to allow the District Court to conclude that

these other defendants’ offenses and histories were sufficiently similar to Crayton’s

offense and history to warrant a downward variance under § 3553(a)(6). For example,

none of the cases Crayton cited appear to involve a defendant like himself who either

accessed and produced child pornography or engaged in conduct “so dangerously close to

       7
         Gall v. United States, 552 U.S. 38, 54 (2007).
       8
         See United States v. Irving, 554 F.3d 64, 76 (2d Cir. 2009) (“[A] reviewing
court’s concern about unwarranted disparities is at a minimum when a sentence is within
the Guidelines range.” (internal quotation marks omitted)).

                                             6
the line” while on bond,9 but still received a below-Guidelines sentence. It is therefore

unsurprising that the District Court’s discussion of this argument was brief.

       Accordingly, we conclude that the District Court meaningfully considered

Crayton’s sentencing disparity argument and did not abuse its discretion by rejecting it.

                                             B.

       Crayton next argues that the District Court imposed a procedurally unreasonable

sentence because it failed to meaningfully consider his policy-based attacks on the five-

level enhancement under U.S.S.G. § 2G2.2(b)(7)(D) for an offense involving over 600

images and the four-level enhancement under U.S.S.G. § 2G2.2(b)(4) for an offense

involving materials portraying sadistic, masochistic, or violent conduct.

       Crayton’s argument misses the mark again. There is no doubt the District Court

recognized its authority to vary downward based on a policy disagreement with the

Guidelines—the Court rejected the two-level computer enhancement for this reason. For

the other enhancements, however, the District Court found Crayton’s policy-based

attacks “generally unpersuasive” and, because there was no factual dispute regarding

whether the enhancement applied, incorporated the enhancements into the Guidelines

calculation. Nothing more was required of the District Court to justify its decision to

adhere to the policy decisions underlying the enhancements that are incorporated into the

Guidelines. Accordingly, the District Court did not abuse its discretion on this ground.


       9
           App. 186.

                                             7
                                          IV.

      For the reasons set forth above, we will affirm the District Court’s judgment of

sentence.




                                           8
