                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                     August 3, 2011
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                      Clerk of Court
                             FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff ! Appellee,
                                                           No. 10-3300
    v.                                         (D.C. No. 6:10!CR!10069!MLB!1)
                                                            (D. Kan.)
    ANDY NGHIEM,

                Defendant ! Appellant.


                             ORDER AND JUDGMENT *


Before HARTZ, Circuit Judge, HOLLOWAY and PORFILIO, Senior
Circuit Judges.



         After the United States District Court for the District of Kansas rejected his

plea agreement, Defendant Andy Nghiem persisted in his plea of guilty to

distribution of child pornography. The district court sentenced him to 121

months’ imprisonment, the bottom of the advisory guidelines range. On appeal he




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
challenges the substantive reasonableness of his sentence, and also raises three

unpreserved challenges to its procedural reasonableness. We affirm.

II. Background

      In September 2008 the German National Police (Bunderskriminalamt, or

BKA) Child Porn Unit identified an Internet Protocol (IP) address that was

sharing a child-pornography movie. The IP address belonged to Defendant. The

BKA referred this information to the Bureau of Immigration and Customs

Enforcement (ICE) Cyber Crimes Center, and a local ICE office in Wichita

obtained and executed a federal search warrant for Defendant’s residence.

      The agents seized four computers and six hard drives not installed on a

computer. Defendant consented to an interview at the time of the search and told

agents that (1) he was the primary user of three computers found in his bedroom

and (2) he utilized peer-to-peer networks and file-sharing programs to download

pornographic images and videos for his personal use, not to be traded or shared.

When asked whether a search of his hard drives would reveal images or videos of

people under the age of 18, Defendant stated, “You might find some.” R. Vol. III

at 9. And when agents inquired whether any of the images or videos would be

sexual in nature, he responded affirmatively.

      Forensic analysis of the seized devices revealed 405 images and 107 video

files of child pornography. The images and videos depicted girls between the

ages of 5 and 12 years old engaging in sexual intercourse, oral sex, masturbation,

                                         -2-
and graphic displays of their genitalia. Some videos also depicted child bondage.

Defendant had sorted the files into various descriptive folders and had accessed

many of them as recently as the day before the search warrant’s execution.

      In April 2010 Defendant was indicted on charges of distribution of child

pornography, see 18 U.S.C. § 2252(a)(2), and possession of child pornography,

see id. § 2252(a)(4)(B). On July 19, 2010, he entered a plea of guilty to

distribution of child pornography under a Fed. R. Crim. P. 11(c)(1)(C) plea

agreement, which set a sentence of 97 months’ imprisonment. The Probation

Office then submitted a presentence investigation report (PSR) that calculated the

advisory guideline range to be 121 to 151 months’ imprisonment, based on

Defendant’s total offense level of 32 and a criminal-history category of I. After

reviewing the PSR, the district court rejected the plea agreement, finding that it

would lead to unwarranted sentencing disparities among defendants who have

been convicted of similar conduct. Defendant decided to persist in his guilty

plea, and the court sentenced him to 121 months, the low end of the applicable

guideline range. Defendant timely appealed.

III. Discussion

      In United States v. Booker, 543 U.S. 220, 261 (2005), the Supreme Court

directed federal appellate courts to review criminal sentences for reasonableness.

“Reasonableness review is a two-step process comprising a procedural and a

substantive component.” United States v. Alapizco-Valenzuela, 546 F.3d 1208,

                                         -3-
1214 (10th Cir. 2008) (internal quotation marks omitted). To say that the district

court acted reasonably—either procedurally or substantively—is to say that it did

not abuse its discretion. See id. A sentence is procedurally reasonable if “the

district court committed no significant procedural error, such as failing to

calculate (or improperly calculating) the Guidelines range, treating the Guidelines

as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a

sentence based on clearly erroneous facts, or failing to adequately explain the

chosen sentence.” Gall v. United States, 552 U.S. 38, 51 (2007). “Substantive

reasonableness, on the other hand, involves whether the length of the sentence is

reasonable given all the circumstances of the case in light of the factors set forth

in § 3553(a).” United States v. Sayad, 589 F.3d 1110, 1116 (10th Cir. 2009)

(alteration and internal quotation marks omitted). A sentence imposed within a

properly calculated guidelines range is presumptively reasonable. See United

States v. Lewis, 594 F.3d 1270, 1277 (10th Cir. 2010). The defendant may rebut

the presumption “by demonstrating that the sentence is unreasonable when viewed

against the other factors delineated in § 3553(a).” Id. (internal quotation marks

omitted).

      A. Substantive Reasonableness

      Defendant contends that his sentence is substantively unreasonable

“because it is greater than necessary to achieve the purposes of sentencing set

forth in 18 U.S.C. § 3553(a).” Aplt. Br. at 16. He acknowledges that the 121-

                                         -4-
month sentence is within the properly calculated guideline range and therefore is

afforded a rebuttable presumption of reasonableness. But he attempts to rebut

that presumption by arguing that there are serious flaws in USSG § 2G2.2, the

guideline that applies to distribution of child pornography. See United States v.

Dorvee, 616 F.3d 174, 184–88 (2d Cir. 2010) (criticizing the severity of § 2G2.2).

His chief point is that the guideline “was driven by Congressional directives,” and

was not “a product of the Sentencing Commission’s particular expertise in

analyzing the empirical data and national experience in sentencing issues.” Aplt.

Br. at 16.

      Defendant may be correct that “[m]any courts are now questioning the

soundness of” § 2G2.2. Aplt. Br. at 21–22. That does not mean, however, that a

within-guideline sentence based in part on a sentencing guideline lacking an

empirical basis is necessarily unreasonable. Guidelines levels can properly

follow Congressional policy regarding the severity of punishment appropriate for

particular offenses, and that policy need not be founded on scientific data. See

United States v. Alvarez-Bernabe, 626 F.3d 1161, 1165–66 (10th Cir. 2010). To

be sure, district courts that disagree with § 2G2.2 may vary from the guidelines to

adjust for what they perceive as its shortcomings. “But if they do not, we will not

second-guess their decisions under a more lenient standard simply because the . . .

Guideline is not empirically-based.” United States v. Mondragon-Santiago, 564

F.3d 357, 367 (5th Cir. 2009); see United States v. Lopez-Reyes, 589 F.3d 667,

                                         -5-
671 (3d Cir. 2009) (“[A] district court is not required to engage in ‘independent

analysis’ of the empirical justifications and deliberative undertakings that led to a

particular Guideline.”). Even if a lesser sentence may have been reasonable in

this case, so may a greater sentence. There will almost always be a range of

reasonable sentences. “The fact that [we] might reasonably have concluded that a

different sentence was appropriate is insufficient to justify reversal of the district

court.” Gall v. United States, 552 U.S. 38, 51 (2007). We cannot say that

Defendant has overcome the presumption that his within-guideline sentence fell

within the realm of rationally available sentences.

      B. Procedural Reasonableness

      Couched within the substantive-reasonableness argument in his opening

brief on appeal, Defendant argues that the district court “abused its discretion

when it based the sentence on [his] possession and collection of adult

pornography, the mistaken conclusion that [he] had been continuously involved

with child pornography for over eight years and that he had violated the

conditions of his pretrial release.” Aplt. Br. at 16. These arguments, which

allege that the court made factual errors and base the sentence on an

impermissible factor, should have been characterized as challenges to the

procedural reasonableness of his sentence. See Gall, 552 U.S. at 51 (a

defendant’s claim that the district court “select[ed] a sentence based on clearly

erroneous facts” is a challenge to procedural reasonableness); United States v.

                                          -6-
Smart, 518 F.3d 800, 803-04 (10th Cir. 2008) (giving significant weight to

improper factor is procedural error). We will therefore treat them as such. But

because Defendant failed to object to these alleged violations at the sentencing

hearing, we can reverse only if these alleged errors rose to the level of plain error.

See United States v. Robertson, 568 F.3d 1203, 1210 (10th Cir. 2009). “Plain

error occurs when there is (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. Caraway, 534 F.3d 1290, 1298 (10th

Cir. 2008) (internal quotations marks omitted). “The defendant has the burden of

establishing all four elements of plain error.” United States v. Hall, 625 F.3d

673, 684 (10th Cir. 2010).

      Defendant’s first claim is that “[t]he district court’s conclusions about the

duration of [Defendant’s] criminal conduct and that he had [been] continuously

involved with child pornography from 2001 until the execution of the search

warrant in February, 2009, conflict with the record.” Aplt. Br. at 34. He points

to the following statement by the court at sentencing:

      [T]his man’s history of possession of pornography. At least since
      2001. And some of that, obviously, had to be child pornography.
             So, while I agree that he’s got a clean record otherwise, that
      he’s apparently been good to his family and has been a good worker;
      the other side of that is that he has engaged for quite sometime in a
      crime that is the kind of crime that people hide, you know.




                                          -7-
R. Vol. II at 21. Defendant asserts that the court’s characterization was

inaccurate because “the record is devoid of any evidence that [he] was involved

with the downloading or possession of child pornography between 2001 and the

commencement of the current offense in July, 2008.” Aplt. Br. at 35.

      We disagree. The district court committed no error by stating that

Defendant’s history with child pornography dated back to 2001. Before

sentencing, Defendant underwent a forensic psychological evaluation “to assess

[his] psychological functioning and risk of sexual recidivism, to appraise his

suitability for community supervision, and to provide treatment and management

recommendations.” R. Vol. III at 57. It appears that during the evaluation he

admitted to looking at images of adolescent females in 2001. The psychologist’s

report states:

      Consistent with information from discovery materials, Mr. Nghiem
      reported that he was the subject of an investigation into his activities
      on the Internet in 2001. He learned about that investigation during
      the investigation into his current alleged offenses. Mr. Nghiem
      stated that for several days in 2001 he set up and maintained a file
      serve for erotic materials. He indicated that, during that general
      period, he viewed erotic materials of female adolescents. He closed
      this file serve after other people violated rules of the file serve. He
      explained, “Better for me to control what I could download rather
      than what people could send to me.”

R. Vol. III at 60. And Defendant also told the psychologist that “he has regularly

viewed erotic materials since he was 20 years old” and that these materials,

although primarily images and videos of adults, “also have involved teenagers and


                                         -8-
children.” Id. at 59. Thus, this claim does not survive the first step of plain-error

review—there was no error.

      Defendant next contends that “[d]uring its discussion of [his] personal

characteristics, the court also commented multiple times on [his] possession of

legal pornography.” Aplt. Br. at 35. These statements, Defendant claims,

demonstrate that the court improperly “considered [his] legal, First Amendment

protected activity as apparently aggravating ‘circumstances of the offense’ of

conviction.” Id. (footnote omitted). In our view, Defendant misconstrues the

court’s statements. The first statement referenced by Defendant came after the

court noted that family members and coworkers had submitted numerous letters of

support on Defendant’s behalf extolling his positive virtues. The court

questioned, however, how much the people who had written the letters knew

about Defendant’s interest in pornography, stating:

      I have no doubt that Mr. Nghiem has been a good employee and a
      good friend and a good family member. But I didn’t see anything in
      any of these letters . . . that said that any of these people were aware
      that Mr. Nghiem has, and has had apparently since 2001 . . . an
      abiding interest in pornography. Having collected hundreds and
      thousands of images of pornography. I didn’t see that in any of this
      material.

R. Vol. II at 17–18. As we understand the court’s comments, they merely reflect

that it thought that the authors of the letters may not have written such positive

things about Defendant had they known of his long-term interest in pornography.

Questioning how much weight to give such letters is not akin to concluding that

                                          -9-
possession of legal pornography is an aggravating factor at sentencing. If the

court erred, the error was not—as required by the second stop of plain-error

analysis—an obvious one.

      The other statement that Defendant points to was the district court’s

response to a “suggestion in some of the letters . . . that Mr. Nghiem won’t

reoffend.” R. Vol. II at 24. The court said that Defendant “is 30 years old and

he’s been engaged at least since he was 20 in accessing pornography.” Id. In

light of the psychologist’s report indicating that Defendant’s access to

pornography had regularly included child pornography, we conclude that it is far

from obvious that the court considered Defendant’s involvement with legal

pornography as an aggravating factor in sentencing.

       Finally, Defendant argues that the court abused its discretion by basing his

121-month sentence, in part, on the erroneous conclusion that he “had

‘reoffended’ by violating the conditions of his [presentence] release” when he

used a computer the night before the sentencing hearing. Aplt. Br. at 37. The

relevant background is as follows: Shortly after Defendant was arrested and

indicted, a magistrate judge released him on a $50,000 unsecured bond, with

special conditions that restricted his use of computers. As Defendant points out,

none of the conditions “impose[d] an outright prohibition on using a computer or




                                        -10-
working on a computer.” Aplt. Br. at 38. 1 At the sentencing hearing, however,

the district court concluded that Defendant had “reoffended” the night before by

working on a computer. Responding to the suggestion that Defendant posed a low

risk of recidivism, the court stated:

      And in the terms of reoffending or whatever, he was told that one of
      the conditions of his release pending trial was that he was not to
      work on computers. Probation went out last night and he was
      working on a computer. He says it belonged to a 14 year old
      nephew. But the point is that he was told he couldn’t do any of that
      and he did. Which suggest to me that he hasn’t learned his lesson.
      And that suggests to me that—well, he’s going to have to learn it
      somewhere because he can’t continue to do this when he’s released
      from the penitentiary.

R. Vol. II at 24. Because the conditions of Defendant’s presentence release did

not prohibit his use of computers, the court erred by considering the alleged

“reoffense” in its sentencing decision.

      We affirm the sentence, however, because Defendant has failed to establish

the third requirement for plain-error reversal—prejudice. He has not pointed to

any evidence that his sentence was increased because of the court’s error. Indeed,

the evidence suggests the contrary. Well before Defendant’s alleged violation of

the conditions of his release, the district court had rejected the 97-month sentence


1
       The government contends that Condition 7 of the special conditions of
Defendant’s bond precluded him from working on a computer. But it requires
only that he “[m]aintain and submit to Pretrial Services a listing and identification
of all computers used by defendant that belong to others including computers used
at school or employment.” Supp. R. at 8 (emphasis added). This condition
appears to contemplate that Defendant would be using computers.

                                          -11-
set in the plea agreement because of its concern that the below-guidelines

sentence would lead to inconsistent sentences among defendants convicted of

similar offenses. Having read the PSR, the court was clearly inclined to impose a

within-guidelines sentence. Perhaps a sentence at the upper end of the guideline

range would have suggested that the court was negatively influenced by what it

had learned after it rejected the plea agreement, but the sentence actually imposed

was at the bottom of the range.

      In sum, Defendant is not entitled to reversal of his sentence on the ground

of procedural reasonableness.

IV. Conclusion

      We AFFIRM Defendant’s sentence.


                                                    Entered for the Court


                                                    Harris L Hartz
                                                    Circuit Judge




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