                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 08-1642
                                ________________

United States of America,                *
                                         *
            Appellee,                    *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Northern District of Iowa.
Travis John O’Connor,                    *
                                         *
            Appellant.                   *

                                ________________

                            Submitted: February 10, 2009
                                Filed: May 28, 2009
                                ________________

Before BYE, JOHN R. GIBSON and GRUENDER, Circuit Judges.
                         ________________

GRUENDER, Circuit Judge.

       After sending twenty-one pornographic images of children to an undercover
police officer he met in an Internet chat room, Travis John O’Connor pled guilty to
transportation and attempted transportation of child pornography, a violation of 18
U.S.C. § 2252A(a)(1), (b)(1), and distribution and attempted distribution of child
pornography, a violation of 18 U.S.C. § 2252A(a)(2)(A), (b)(1). At sentencing, the
district court1 adopted the Presentence Investigation Report’s recommended advisory

      1
        The Honorable Mark W. Bennett, United States District Judge for the Northern
District of Iowa.
sentencing guidelines range of 188 to 235 months based on a total offense level of 35
and a criminal history category of II. The district court also granted O’Connor’s
motion for a downward variance and sentenced him to 120 months’ imprisonment.
In doing so, the court stated:

            So for all of those reasons I’m going to vary from the bottom of
      the guidelines range of 188 months down to—it’s still a very lengthy
      sentence by any measure—down to 120 months on Counts 1 and 2 to run
      concurrently. I find that this sentence is sufficient but not greater than
      necessary to comply with all sentencing purposes.

              And I’ve tried to err on the high side. I actually think a lesser
      sentence would probably be sufficient but not greater than necessary.
      But I recognize that—and the government argued in their brief that
      Congress didn’t want departures for this type of crime. Now, I think that
      whole analysis goes out the window after United States versus Gall and
      section 3553(a) because we’re just to apply those factors which I’ve tried
      to faithfully apply. But because of Congress’s concern, I did kind of err
      on the higher side of what I thought would be a reasonable sentence in
      this case.

       O’Connor appeals his sentence, arguing that the district court abused its
discretion and imposed a substantively unreasonable sentence by considering and
giving significant weight to an improper sentencing factor—Congress and the
Sentencing Commission’s desire to avoid sentences below the guidelines range for
sexual offenses involving minors. See 18 U.S.C. § 3553(b)(2); U.S.S.G. § 5K2.0(b).2
According to O’Connor, the Supreme Court’s decision in Kimbrough v. United States,

      2
       Sections 3553(b)(2) and 5K2.0(b) direct district courts to sentence defendants
convicted of sexual offenses involving minors within the guidelines range absent a
mitigating circumstance that “has been affirmatively and specifically identified as a
permissible ground of downward departure in the sentencing guidelines or policy
statements . . . [and that] has not adequately been taken into consideration by the
Sentencing Commission in formulating the guidelines.” See 18 U.S.C. §
3553(b)(2)(A)(ii); U.S.S.G. § 5K2.0(b).

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552 U.S. ---, 128 S. Ct. 558 (2007), prohibits district courts from considering
sentencing statutes or guidelines, such as § 3553(b)(2) or § 5K2.0(b), that were
created through “Congressional policy and directives” rather than “the Sentencing
Commission’s usual empirical approach.” Appellant’s Br. at 13.

       We review a district court’s sentence in two steps: first, we review for
significant procedural error; and second, if there is no significant procedural error, we
review for substantive reasonableness. Gall v. United States, 552 U.S. ---, 128 S. Ct.
586, 597 (2007); see also United States v. Barker, 556 F.3d 682, 689 (8th Cir. 2009).
We review the substantive reasonableness of a sentence under the “deferential abuse-
of-discretion standard.” Gall, 128 S. Ct. at 591; see also United States v. Dehghani,
550 F.3d 716, 723 (8th Cir. 2008). “A district court abuses its discretion and imposes
an unreasonable sentence when it fails to consider a relevant factor that should have
received significant weight; gives significant weight to an improper or irrelevant
factor; or considers only the appropriate factors but commits a clear error of
judgment.” United States v. Saddler, 538 F.3d 879, 890 (8th Cir.) (alterations
omitted) (quoting United States v. Mousseau, 517 F.3d 1044, 1048-49 (8th Cir.
2008)), cert. denied, 555 U.S. ---, 129 S. Ct. 770 (2008).

       Because O’Connor does not argue in his briefs that the district court committed
any procedural error,3 we bypass the first part of our review and move directly to
review the substantive reasonableness of his sentence. See United States v. Toothman,
543 F.3d 967, 970 (8th Cir. 2008). Additionally, we review O’Connor’s argument
that the district court considered and gave significant weight to an improper


      3
        We recognize the existence of a second line of authority that categorizes a
district court’s consideration of an allegedly improper or irrelevant factor as a
procedural error rather than a challenge to substantive reasonableness. See United
States v. Phelps, 536 F.3d 862, 867 (8th Cir. 2008), cert. denied, 555 U.S. ---, 129 S.
Ct. 1390 (2009). We need not resolve this question here, however, because we would
reach the same result under either framework.

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sentencing factor for plain error because O’Connor failed to raise this argument at
sentencing. See United States v. M.R.M., 513 F.3d 866, 870 (8th Cir.), cert. denied,
555 U.S. ---, 129 S. Ct. 171 (2008). Plain error is an error that is plain and that affects
a defendant’s substantial rights. Saddler, 538 F.3d at 891. We will correct a plain
error only if it “seriously affects the fairness, integrity or public reputation of judicial
proceedings.” United States v. Roundtree, 534 F.3d 876, 878 (8th Cir. 2008).

        Here, we find no error, plain or otherwise, in the district court’s decision to
consider and give significant weight to Congress and the Sentencing Commission’s
expressed desire to avoid sentences below the guidelines range for offenders who
commit sexual offenses involving minors. As a threshold matter, we recognize that
this is not a situation where the district court treated the guidelines as mandatory as
a result of § 3553(b)(2). Cf. United States v. Selioutsky, 409 F.3d 114, 116-17 (2d Cir.
2005) (excising § 3553(b)(2) under the rationale set forth in United States v. Booker,
543 U.S. 220 (2005)); United States v. Yazzie, 407 F.3d 1139, 1144 (10th Cir. 2005)
(same). Here, the district court granted a downward variance to 120 months’
imprisonment after recognizing its post-Gall obligation to consider all of the § 3553(a)
sentencing factors—including 18 U.S.C. § 3553(a)(5), which requires the district court
to consider relevant policy statements, such as § 5K2.0(b), in imposing a sentence.

       O’Connor’s Kimbrough argument boils down to an argument that we previously
rejected in United States v. Battiest, 553 F.3d 1132 (8th Cir. 2009). In Kimbrough,
the Supreme Court held that a district court did not abuse its discretion by refusing to
apply the 100-to-1 crack cocaine to powder cocaine ratio in U.S.S.G. § 2D1.1 where
the court found that applying the ratio would yield “a sentence ‘greater than
necessary’ to achieve § 3553(a)’s purposes.” Kimbrough, 128 S. Ct. at 500.4 Relying
on Kimbrough, Battiest argued that the district court abused its discretion at


       4
      For the purposes of this case, we will assume without deciding that
Kimbrough’s holding extends beyond the 100-to-1 crack / powder cocaine disparity.

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sentencing by not considering that “the Guidelines’ recommended child-pornography
sentences are based on unsound policy [and] lack empirical support.” Battiest, 553
F.3d at 1136. We rejected Battiest’s argument, noting that “Kimbrough did not
mandate that district courts consider the crack/powder sentencing disparity and do not
‘act unreasonably, abuse their discretion or otherwise commit error’ if they do not.”
Id. at 1137 (alterations omitted) (quoting United States v. Roberson, 517 F.3d 990,
995 (8th Cir. 2008)). Stated differently, even “assuming that a sentencing court may
disregard [a guideline] on pure policy grounds, Kimbrough and Spears do not hold
that a district court must disagree with any sentencing guideline, whether it reflects a
policy judgment of Congress or the Commission’s ‘characteristic’ empirical
approach.” United States v. Barron, 557 F.3d 866, 871 (8th Cir. 2009) (citing
Battiest, 553 F.3d at 1136-37). Here, by arguing that Kimbrough prohibits a district
court from considering as a sentencing factor Congress and the Sentencing
Commission’s desire to avoid sentences below the guidelines range for sexual
offenses involving minors, O’Connor necessarily implies that a district court must
disagree with § 5K2.0(b) and § 3553(b)(2) on policy grounds. Because O’Connor
raises essentially the same argument we rejected in Battiest, we similarly reject his
Kimbrough argument.

      Because O’Connor sets forth no other reasons why his sentence is unreasonable,
we find that the district court did not abuse its discretion. Accordingly, we affirm
O’Connor’s sentence.
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