     Case: 14-60700      Document: 00513116635         Page: 1    Date Filed: 07/15/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-60700
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            July 15, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

BRIAN ROBINSON,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 3:11-CR-49-1


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       Brian Robinson pleaded guilty to one count of production of child
pornography, one count of distribution of child pornography, and one count of
possession of child pornography. The district court sentenced him within the
applicable guidelines range, which was based on the statutory maximum terms
of imprisonment for each count, to a total prison term of 720 months. In a prior
opinion, we concluded that the district court procedurally erred in finding that


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-60700

it lacked discretion to consider Robinson’s cooperation with authorities in the
absence of a U.S.S.G. § 5K1.1 motion from the Government and remanded for
resentencing. See United States v. Robinson, 741 F.3d 588, 598-603 (5th Cir.
2014). On remand, the district court again imposed a total sentence of 720
months.    Robinson appeals, arguing that this sentence is substantively
unreasonable.
      We review the substantive reasonableness of a sentence under an abuse
of discretion standard, taking into account the totality of the circumstances.
United States v. Rodriguez, 660 F.3d 231, 233 (5th Cir. 2011). Where, as here,
the district court imposes a sentence that is within a properly calculated
guidelines range, we apply a rebuttable presumption of reasonableness. See
United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). “The presumption is
rebutted only upon a showing that the sentence does not account for a factor
that should receive significant weight, it gives significant weight to an
irrelevant or improper factor, or it represents a clear error of judgment in
balancing sentencing factors.” Id.
      Robinson first argues that his sentence does not account for a sentencing
factor that should have received significant weight: the need to avoid
unwarranted sentence disparities. See 18 U.S.C. § 3553(a)(6). But in this
circuit, the unwarranted disparity factor is not entitled to significant weight
when the sentence imposed—like Robinson’s—falls within the Guidelines
range. See United States v. Diaz, 637 F.3d 592, 604 (5th Cir. 2011). Moreover,
Robison has not established that his sentence was disparate from the sentences
of similarly situated defendants. He points to no nationwide statistics. See
United States v. Balleza, 613 F.3d 432, 435 (5th Cir. 2010). Instead, he asserts
that he was similarly situated to Eric Schuster, who was convicted of similar
conduct and also cooperated with authorities.         Schuster, who faced a



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                                 No. 14-60700

Guidelines range sentence of 360 months, received 262 months. See United
States v. Schuster, 706 F.3d 800, 803 (7th Cir. 2013). Robinson has not shown
that there is an unwarranted disparity between his sentence and Shuster’s.
      Robinson asserts that the district court did not specifically discuss
Schuster or the disparity arguments during the resentencing, but the district
court heard his arguments and stated that it had read and reviewed the
information he submitted, which included the comparisons to Schuster’s case.
While there are some similarities between the two men, we find that they are
not similarly situated and, thus, “are not appropriate points for comparison in
a reasonableness analysis.” Cooks, 589 F.3d at 186. For example, Robinson
pleaded guilty to three separate counts with a combined statutory maximum
of 720 months, while Schuster pleaded guilty to a single count with a statutory
maximum of 360 months. The Government also moved for a § 5K1.1 reduction
in Schuster’s case, but it specifically declined to do so in Robinson’s case;
disparities resulting from substantial assistance departures were intended by
Congress and are not a basis for arguing that an unwarranted disparity exists.
See United States v. Candia, 454 F.3d 468, 476 (5th Cir. 2006).         Finally,
although both men victimized their own children, the record reflects that
Robinson’s conduct involved more egregious sexual contact and that his victim
has suffered more psychological consequences as a result. Because Robinson
has not shown that he and Schuster are similarly situated, he has not shown
that the sentence disparity factor should have received significant weight. See
Cooks, 589 F.3d at 186.
      Robinson also argues that his sentence represents a clear error of
judgment in balancing the sentencing factors. See Cooks, 589 F.3d at 186. He
asserts that other sentencing factors, such as his cooperation with authorities,
the disparity with Schuster’s sentence, and his own efforts at post-sentencing



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                                  No. 14-60700

rehabilitation should have outweighed the district court’s focus on the
reprehensible nature of his offenses. We conclude that Robinson has not shown
a clear error in balancing the sentencing factors. His challenge represents a
disagreement with the district court’s balancing of the § 3553(a) factors, an
analysis which the district court was in a better position than this court to
perform. See United States v. Hernandez, 633 F.3d 370, 375 (5th Cir. 2011).
Such     disagreement   is   insufficient       to   overcome    the   presumption    of
reasonableness. See United States v. Alvarado, 691 F.3d 592, 597 (5th Cir.
2012).
       AFFIRMED.




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