                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________                  FILED
                                                                 U.S. COURT OF APPEALS
                                       No. 10-11524                ELEVENTH CIRCUIT
                                   Non-Argument Calendar            DECEMBER 15, 2010
                                 ________________________               JOHN LEY
                                                                         CLERK
                           D.C. Docket No. 1:09-cr-00006-KD-M-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                          Plaintiff-Appellee,

                                            versus

MELISSA B. GRAY,

lllllllllllllllllllll                                          Defendant-Appellant.

                                ________________________

                          Appeal from the United States District Court
                             for the Southern District of Alabama
                                 ________________________

                                     (December 15, 2010)

Before DUBINA, Chief Judge, TJOFLAT and FAY, Circuit Judges.

PER CURIAM:

         Appellant Melissa B. Gray appeals her 96-month total sentence, imposed by

the district court after she pled guilty to one count of possessing child
pornography, in violation of 18 U.S.C. § 2252(a)(5)(B), and one count of

receiving child pornography, in violation of 18 U.S.C. § 2252(a)(2). On appeal,

Gray argues that her total sentence was substantively unreasonable because

U.S.S.G. § 2G2.2 “is not the product of empirical data, national experience, or

independent expertise and thus does not satisfy Section 3553(a)’s objectives.”

Gray relies on a Second Circuit opinion, United States v. Dorvee, 616 F.3d 174

(2d Cir. 2010), and the Supreme Court’s opinions in Kimbrough v. United States,

552 U.S. 85, 128 S. Ct. 558, 169 L. Ed. 2d 481 (2007), and Gall v. United States,

552 U.S. 38, 128 S. Ct. 586, 169 L. Ed. 2d 445 (2007) to contend that, because the

guideline is contrary to the purposes of sentencing, her sentence was substantively

unreasonable.

      We review the reasonableness of a district court’s sentence under a

deferential abuse of discretion standard of review. Gall, 552 U.S. at 41, 128 S. Ct.

at 591.

      To be substantively reasonable, the district court is required to impose

sentences that are “sufficient, but not greater than necessary, to comply with the

purposes” listed in 18 U.S.C. § 3553(a)(2), including the need to reflect the

seriousness of the offense, promote respect for the law, provide just punishment

for the offense, deter criminal conduct, protect the public from the defendant’s

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future criminal conduct, and provide the defendant with needed educational or

vocational training or medical care. See 18 U.S.C. § 3553(a)(2). In imposing a

particular sentence, the court must also consider the nature and circumstances of

the offense, the history and characteristics of the defendant, the kinds of sentences

available, the applicable guideline range, the pertinent policy statements of the

Sentencing Commission, the need to avoid unwarranted sentencing disparities, and

the need to provide restitution to victims. Id. § 3553(a)(1), (3)-(7). Another

relevant factor is the relationship between the defendant’s sentence and the

applicable statutory maximum. See United States v. Gonzalez, 550 F.3d 1319,

1324 (11th Cir. 2008) (noting, as one indication of reasonableness, that a

defendant’s sentence was “well below” the applicable statutory maximum), cert.

denied, 129 S. Ct. 2848 (2009). We ordinarily expect that a sentence within the

advisory guidelines range will be reasonable. United States v. Hunt, 526 F.3d 739,

746 (11th Cir. 2008) (quoting United States v. Talley, 431 F.3d 784, 788 (11th Cir.

2005)). “[W]e are to vacate the sentence if, but only if, we are left with the

definite and firm conviction that the district court committed a clear error of

judgment in weighing the § 3553(a) factors by arriving at a sentence that lies

outside the range of reasonable sentences dictated by the facts of the case.”

United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (internal

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quotation marks omitted).

      We have previously rejected the same argument that Gray levies against her

sentences, holding that the Guidelines pertaining to child pornography offenses

adequately take into account empirical data and national experience. See United

States v. Pugh, 515 F.3d 1179, 1201 n.15 (11th Cir. 2008). Thus, Gray’s attack on

the applicable Guideline fails, and the fact that the district court relied on U.S.S.G.

§ 2G2.2 to sentence Gray did not render her sentences incompatible with the

purposes of sentencing. Because we hold Gray’s 96-month total sentence was

substantively reasonable, we affirm her sentence.

      AFFIRMED.




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