     Case: 13-20150       Document: 00512617980         Page: 1     Date Filed: 05/05/2014




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

                                     No. 13-20150                                   FILED
                                   Summary Calendar                              May 5, 2014
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

DEBRA JEAN EYERLY, also known as Debra Martin-Pryce

                                                  Defendant -Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CR-809-1


Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Debra Jean Eyerly challenges the sentences imposed as a result of her
guilty-plea convictions for conspiring to produce child pornography, aiding and
abetting its production, and its transportation and possession. Although the
applicable advisory Guidelines-sentencing range was limited to the statutory
maximum of 1,800 months’ imprisonment, which Eyerly does not dispute, the
district court sentenced her below that range to 300 months.


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 13-20150

      Post-Booker, the Sentencing Guidelines are advisory only, and a properly
preserved objection to an ultimate sentence is reviewed for reasonableness
under an abuse-of-discretion standard; nevertheless, the district court must
still properly calculate the Guidelines-sentencing range for use in deciding on
the sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that
respect, for issues preserved in district court, its application of the Guidelines
is reviewed de novo; its factual findings, only for clear error. E.g., United States
v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).             Eyerly claims
procedural error and maintains her sentence is substantively unreasonable.
      For the claimed procedural error, Eyerly asserts the court imposed
improperly a four-level increase pursuant to Guideline § 2G2.1(b)(2)(B)
(enhancement for offense involving commission of a sexual act). This claim
need not be considered because removing the adjustment would not affect the
applicable sentencing range; therefore, the error, if any, would be harmless.
See, e.g., United States v. Chon, 713 F.3d 812, 822 n.7 (5th Cir.), cert. denied,
134 S. Ct. 255 (2013).
      Regarding the claimed substantively-unreasonable sentence, Eyerly
asserts that, in considering the 18 U.S.C. § 3553(a) factors, the court did not
adequately account for, inter alia, her history of sexual abuse and alcoholism.
When sentencing a defendant, the district court must consider, inter alia, the
nature   and    circumstances     of   the   offense;   defendant’s    history   and
characteristics; the seriousness of the offense; and the need to promote respect
for the law, provide just punishment, afford adequate deterrence, and protect
the public. 18 U.S.C. § 3553(a). The substantive reasonableness of a sentence
is determined “by considering the totality of the circumstances, granting
deference to the district court’s determination of the appropriate sentence
based on the § 3553(a) factors”. United States v. McElwee, 646 F.3d 328, 337



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                                    No. 13-20150

(5th Cir. 2011) (citation and internal quotation marks omitted). For obvious
reasons, “the sentencing judge is in a superior position to find facts and judge
their import under § 3553(a) with respect to a particular defendant”. United
States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008) (citation
omitted).
      The record reflects the court listened to, and adequately considered,
Eyerly’s contentions regarding a lesser sentence, but found the 300-month
sentence appropriate. See United States v. Rodriguez, 523 F.3d 519, 525–26
(5th Cir. 2008). We find no reason to disturb the court’s exercise of discretion.
See, e.g., Campos-Maldonado, 531 F.3d at 339.
      AFFIRMED.




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