     Case: 17-30162       Document: 00514259149         Page: 1     Date Filed: 12/04/2017




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

                                     No. 17-30162
                                                                                       Fifth Circuit

                                                                                     FILED
                                   Summary Calendar                           December 4, 2017
                                                                                Lyle W. Cayce
UNITED STATES OF AMERICA,                                                            Clerk


                                                  Plaintiff - Appellee

v.

THOMAS HANES,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:16-CR-110-1


Before BARKSDALE, PRADO, and OWEN, Circuit Judges.
PER CURIAM: *
       Thomas Hanes challenges his two within-Sentencing Guidelines,
concurrent sentences of 220 months’ imprisonment, on one count of
distribution of, and one count of possession of, child pornography, in violation
of 18 U.S.C. §§ 2252A(a)(2)(A) and (5)(B), respectfully. Hanes pleaded guilty
to these charges after police software identified his IP address’ connection with
over 2,000 child-pornography files, some containing images of prepubescent


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 17-30162

children as young as two-years-old. He asserts, for the first time on appeal,
the court erred in concluding it lacked authority to depart from the Guidelines’
advisory sentencing-range of 210 to 262 months’ imprisonment.
      Although post-Booker, the Sentencing Guidelines are advisory only, the
district court must avoid significant procedural error, such as improperly
calculating the Guidelines sentencing range. Gall v. United States, 552 U.S.
38, 48–51 (2007). If no such procedural error exists, a properly preserved
objection to an ultimate sentence is reviewed for substantive reasonableness
under an abuse-of-discretion standard. Id. at 51; United States v. Delgado-
Martinez, 564 F.3d 750, 751–53 (5th Cir. 2009). 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).
      Nevertheless, because Hanes did not raise the issue at hand in district
court, review is only for plain error. E.g., United States v. Broussard, 669 F.3d
537, 546 (5th Cir. 2012). Under that standard, Hanes must show a forfeited
plain (clear or obvious) error that affected his substantial rights. Puckett v.
United States, 556 U.S. 129, 135 (2009). If he does so, we generally have the
discretion to correct the reversible plain error, but should do so only if it
“seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings”. Id.
      Although treating the Guidelines as mandatory amounts to a significant
procedural error, Gall, 552 U.S. at 51, the record as a whole does not show the
court believed it lacked the authority to deviate from the Guidelines.          At
sentencing, the court considered Hanes’ assertions in favor of a downward
variance and his allocution before concluding it was “[not] appropriate to
depart from the [G]uideline[s’] sentence in this particular case”, finding Hanes’



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                                 No. 17-30162

conduct fell within the heartland of conduct addressed by the Guidelines. The
court considered the 18 U.S.C. § 3553(a) sentencing factors, explaining it chose
the sentence based on, inter alia: the nature and circumstances of Hanes’
conduct, the need to deter future criminal conduct, the need to protect the
public, the need to provide Hanes with correctional treatment, and the need to
avoid unwarranted sentencing disparity.
      The court’s statements do not show it believed the Guidelines were
mandatory, but rather it found a within-Guidelines sentence appropriate,
considering Hanes’ offense and the 18 U.S.C. § 3553(a) sentencing factors.
E.g., United States v. Washington, 480 F.3d 309, 320 (5th Cir. 2007). Hanes,
therefore, has not shown the requisite clear or obvious procedural error. Gall,
552 U.S. at 51.
      AFFIRMED.




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