                                              NOT PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT


                     No. 15-3796


          UNITED STATES OF AMERICA

                          v.

                  JUSTIN KINNEY,

                               Appellant



    On Appeal from the United States District Court
              for the District of New Jersey
       (District Court No.: 2-15-cr-00138-001)
     District Judge: Honorable Stanley R. Chesler


      Submitted under Third Circuit LAR 34.1(a)
                  on July 12, 2016


           (Opinion filed: August 16, 2016)


Before: SMITH, JORDAN, and RENDELL, Circuit Judges
                                       O P I N I O N*


RENDELL, Circuit Judge:

       Justin Kinney pleaded guilty to two counts of child pornography in violation of 18

U.S.C. § 2251(a). Kinney photographed himself raping an eight-year-old girl and a six-

year-old girl. Kinney was sentenced to thirty years in prison—half the guideline

recommendation of sixty years. Kinney appealed his sentence on the grounds that the

sentencing Judge failed to meaningfully consider his mitigating arguments for an even

greater downward variance, rendering his current sentence procedurally and substantively

unreasonable. We will affirm the sentence imposed by the District Court.

                                     BACKGROUND

       Both victims were known personally by Kinney, and he was entrusted with the

care of each victim at the time of the rapes. His first victim was the eight-year-old sister

of his girlfriend, whose family he lived with. The second victim was the six-year-old

half-sister of his son. Kinney photographed himself anally raping victim one; he also

photographed victim two. Kinney’s total offense level was determined to be forty-four,

and he had no previous convictions. The maximum statutory sentence was sixty years;

the minimum was fifteen years. His offense level of forty-four resulted in a guideline

imprisonment recommendation of life, which was reduced to the statutory maximum of

sixty years. During his sentencing hearing, Kinney asked for a sentence of fifteen to

       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
                                              2
seventeen years. Kinney argued that his disadvantaged upbringing warranted a downward

variance from the guideline sentence of 720 months, or sixty years. He noted the adverse

treatment he would face in jail due to the nature of his crime, and the chance he would be

civilly committed after completing his sentence. The government argued for a sixty-year

sentence, referring to Kinney as a societal nightmare who ruined the lives of young girls

and their families.

       After conducting a thorough analysis of the § 3553 factors, the Court found a

sentence of thirty years appropriate in light of Kinney’s age, the opportunity for

rehabilitation, the need to protect society, the need to impose a just sentence, and the need

to reflect the seriousness of his crime.

                                STANDARD OF REVIEW

       We review the sentencing decision of the District Court under an abuse-of-

discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). The abuse-of-

discretion standard applies regardless of whether the sentence falls within the guideline

range. Id. We must first determine whether the District Court committed any procedural

error. Id. If we find the District Court committed no procedural error, we then assess the

substantive reasonableness of the sentence, again under an abuse-of-discretion standard.

Id.

                                       DISCUSSION 1

                      (a) Procedural Reasonableness of the Sentence


1
 We have jurisdiction under 28 U.S.C. § 1291. The District Court had jurisdiction under
18 U.S.C. § 3231.
                                             3
       Kinney argues that the District Court failed to meaningfully consider his

arguments for a lesser sentence. During sentencing, Kinney argued a fifteen- to

seventeen-year sentence would be more appropriate because: (1) the sentence would be

closer to eighteen to twenty years as Kinney was imprisoned during his trial and would

not receive credit toward his federal sentence; (2) there was a chance he would be civilly

committed after completing his sentence; and (3) he would be supervised for the rest of

his life following his release from prison.

       When imposing a sentence, courts are required to consider the mitigating

arguments of the defendant, along with the 18 U.S.C. § 3553(a) 2 factors. See United

States v. Jackson, 467 F.3d 834, 841 (3d. Cir. 2006). A district court must provide an

explanation “sufficient for us to see that the particular circumstances of the case have

been given meaningful consideration within the parameters of § 3553(a).” United States

v. Levinson, 543 F.3d 190, 196 (3d Cir. 2008). There is no set level of consideration a

district court must show in order for a sentence to be procedurally reasonable as each

case will differ depending upon the specific facts. United States v. Tomko, 562 F.3d 558,

567 (3d Cir. 2009) (en banc). A sentence may require more explanation if it does not fall

within the guidelines range. United States v. Merced, 603 F.3d 203, 215-16 (3d Cir.

2010). A sentence is procedurally unreasonable if, for example, the district court court

does not consider the §3553 factors, treats the guidelines as mandatory, provides

2
  The § 3553(a) include: (1) the nature of the offense and the history and characteristics
of the defendant; and (2) the need for the sentence imposed to (a) reflect the seriousness
of the offense, promote respect for the law, and provide just punishment; (b) provide
adequate deterrence; (c) protect the public from the defendant; and (d) provide
rehabilitation and educational opportunities for the defendant. 18 U.S.C. § 3553(a)(1)-(2).
                                              4
inadequate reasoning for its sentence, or imposes a sentence based on clearly inaccurate

facts. Gall, 552 U.S. at 51.

       Kinney’s sentence was not procedurally unreasonable. The record reflects the

District Court’s meaningful consideration of the §3553(a) factors and Kinney’s

mitigating arguments. Indeed, the District Court granted Kinney a thirty-year downward

variance. The District Court deemed the thirty-year sentence sufficient to “protect society

from this defendant, to reflect the outrageous extreme nature of his conduct, to reflect the

seriousness and to reflect a just sentence.” App. at 65. Kinney’s age and his potential to

be rehabilitated were of particular significance; both these reasons were cited as

warranting the thirty-year downward variance from the sixty-year sentence the

Prosecution sought. See App. at 65 (“But I do recognize the fact that, indeed, for

everyone there’s at least some hope . . . of indeed rehabilitation, recovery.”). Ultimately,

however, the Court found the mitigating arguments did not warrant an even greater

downward variance in Kinney’s sentence. See App. at 69-70 (“The Court actually

considered all of your arguments. . . . The Court, nevertheless, concludes that the need to

protect society and adequately reflect the seriousness of this offense outweigh that.”). For

example, the Court recognized the adversity Kinney faced growing up, but found it did

not warrant reducing his sentence to less than half the guideline sentence of sixty years.

See App. at 64 (“This defendant didn’t become, to put it bluntly, a child rapist merely

because of his upbringing.”).




                                              5
      Because the record shows that the District Court engaged in a discussion of the

relevant factors, and the Court meaningfully considered those factors, Kinney has not

shown that his sentence was procedurally unreasonable.

                     (b) Substantive Reasonableness of the Sentence

      To determine whether a sentence was substantively reasonable, we look to all the

circumstances in a given case. Id. If a sentence was procedurally sound, as was Kinney’s,

we will not find it substantively unreasonable “unless no reasonable sentencing court

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

district court provided.” Tomko, 562 F.3d at 568. Because we may presume that a

sentence within the guidelines was reasonable, it is especially demanding for a defendant

to show that a sentence below the guideline recommendation was unreasonable. See Rita

v. United States, 551 U.S. 338, 347 (2007). Kinney’s sentence here was well below the

guideline recommendation of sixty years, and we find, based on the totality of the

circumstances, and especially given the nature of Kinney’s crimes, that his argument that

the sentence was substantively unreasonable is meritless.

                                    CONCLUSION

      Because Kinney has failed to show that his sentence was either procedurally or

substantively unreasonable, we will affirm the sentence imposed by the District Court.




                                            6
