     Case: 11-50831     Document: 00511899594         Page: 1     Date Filed: 06/26/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           June 26, 2012
                                     No. 11-50831
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

CHAD MICHAEL REDENIUS, also known as Chad Michel Redenius,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:11-CR-361-1


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Chad Michael Redenius pleaded guilty to possession of child pornography
and was sentenced to a within-guidelines sentence of 120 months of
imprisonment and 10 years of supervised release. Redenius argues that the
statutory-maximum sentence of 120 months was unreasonable because it was
greater than necessary to meet the sentencing goals of 18 U.S.C. § 3553(a). In
particular, Redenius argues that the district court failed to accord weight to
significant sentencing factors that should have been accounted for, including

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-50831

that Redenius had been assaulted as a child; that Redenius had suffered
emotional and psychological problems from being assaulted; that in the two
years Redenius was free after his house was searched he did not return to his
misconduct; that Redenius was genuinely remorseful; and that the doctor who
examined Redenius thought treatment would assist Redenius. He argued that
the statutory-maximum sentence imposed in a mine-run possession case shows
that the district court failed to accord weight to the mitigating evidence that
showed a sentence of less than 10 years would have been sufficient to accomplish
the purposes of § 3553(a).
      The substantive reasonableness of a sentence is reviewed for abuse of
discretion. Gall v. United States, 552 U.S. 38, 51 (2007). A sentence imposed
within a properly calculated guideline range is entitled to a rebuttable
presumption of reasonableness. Rita v. United States, 551 U.S. 338, 347 (2007).
To rebut the presumption of reasonableness, the appellant must show that the
district court failed to account for a sentencing factor that should have been
accorded substantial weight, gave substantial weight to an “irrelevant or
improper factor,” or made “a clear error of judgment in balancing [the]
sentencing factors.” United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
      The district court listened to Redenius’s arguments for a downward
variance. The district court stated that it had considered all of the § 3553(a)
factors, concluded that the guideline range of 120 months was an appropriate
sentence, and chose not to vary downward. Other than his blanket assertion
that the district court did not account for and weigh and balance his mitigating
factors properly, Redenius has not pointed to anything in the record to show that
the district court’s presumptively reasonable choice of a within-guidelines
sentence was an abuse of discretion. See Rita, 551 U.S. at 347; United States v.
Rodriguez, 523 F.3d 519, 526 (5th Cir. 2008).
      Redenius notes that in United States v. Miller, 665 F.3d 114, 119-23 (5th
Cir. 2011), we rejected the contention that sentences imposed pursuant to the

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                                  No. 11-50831

child pornography Guidelines are substantively unreasonable because those
Guidelines are not empirically based.       We emphasized that the “advisory
Guidelines sentencing range remains a factor for district courts to consider in
arriving upon a sentence” and that the “Guidelines remain the Guidelines, and
district courts must take them into account.” Id. at 121, 123. Redenius does not
contend that his sentence is unreasonable because the child pornography
Guideline is unreasonable or that the Guideline should have been ignored. He
argues that the high sentence suggested by U.S.S.G. § 2G2.2 contributed to the
district court’s improper balancing of the § 3553 factors and that the statutory
maximum sentence imposed was unreasonable on the facts and circumstances
of his case.
      The argument that § 2G2.2 unreasonably skews the Guidelines too high
even in a typical possession of child pornography case was also rejected in Miller.
See Miller, 665 F.3d at 122-23. “A sentence is not unreasonable simply because
it applied these enhancements to arrive upon the properly calculated advisory
Guidelines range.” Id. at 123.
      Redenius has failed to show that his within-guidelines sentence of 120
months is substantively unreasonable, and his sentence is AFFIRMED.




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