                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 24 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-10132

              Plaintiff - Appellee,              D.C. No. 3:09-cr-00074-HDM-
                                                 RAM-1
  v.

MARK RUSSELL PSICK,                              MEMORANDUM *

              Defendant - Appellant.



                   Appeal from the United States District Court
                            for the District of Nevada
                  Howard D. McKibben, District Judge, Presiding

                     Argued and Submitted December 8, 2010
                              Pasadena, California

Before: B. FLETCHER, BERZON, and CALLAHAN, Circuit Judges.

       Mark Russell Psick appeals his 63-month sentence for possession of child

pornography, 18 U.S.C. § 2252(a)(5)(B). We have jurisdiction pursuant to 28

U.S.C. § 1291. We affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Psick argues that the district court erred in holding that the Sentencing

Guidelines determine the presumptive sentence and thereby required him to

shoulder the burden to persuade the court to sentence below the Guidelines range.

Psick relies on several discrete statements made by the district court. Read in

context, however, those statements simply show that, after discussing the 18

U.S.C. § 3553(a) factors, the district court sentenced Psick to a low-end Guidelines

sentence in light of the mine-run nature of the case. Psick concedes as much. The

court’s approach was consistent with Gall v. United States, 552 U.S. 38 (2007),

and United States v. Carty, 520 F.3d 984, 993 (9th Cir 2008), cert. denied Zavala

v. United States, 553 U.S. 1061 (2008). There was no procedural error.

      Psick further argues that the child pornography Guideline, U.S.S.G. § 2G2.2,

is not based on empirical data and national experience. After Kimbrough v. United

States, 552 U.S. 85 (2007), the district court can disagree with § 2G2.2 based on

policy across the board, instead of making an individualized determination that the

Guidelines yield an excessive sentence in a particular case. See United States v.

Henderson, No. 09–50544, — F.3d — , 2011 WL 161341, at *7–8 (9th Cir. Apr.

29, 2011) (so holding). Psick does not argue that the district court failed to

recognize its Kimbrough sentencing authority. Rather, he argues that the district

court’s refusal to disregard § 2G2.2 on policy grounds resulted in a substantively


                                           2
unreasonable sentence. But a district court’s authority to disagree with § 2G2.2

includes the authority to agree with it. See id. at *8.

      Finally, Psick argues that in failing to sentence him below the Guidelines

range, the district court created unwarranted sentencing disparities in violation of

18 U.S.C. § 3553(a)(6). See United States v. Ringgold, 571 F.3d 948, 951 (9th Cir.

2009) (Section 3553(a)(6) requires district courts to consider sentencing disparities

among similarly situated defendants.). Psick contends that there is an “emerging

national consensus” that U.S.S.G. § 2G2.2 is not entitled to deference and that

judges must routinely sentence run-of-the-mill child pornography offenders below

the Guidelines range.

      The district court carefully considered Psick’s argument, but rejected it

because the statistics lacked the kind of specificity that would make meaningful

comparisons possible. The district court did not abuse its discretion in finding that

there is not, at least as of now, a “national consensus.” Also, the district court

necessarily considered the issue of unwarranted disparities by properly calculating

and reviewing the Guidelines range. See Gall, 552 U.S. at 54 (avoidance of

unwarranted disparities was “clearly” considered by the Sentencing Commission

when setting the Guidelines ranges, and a district court necessarily gives




                                           3
significant weight and consideration to the need to avoid unwarranted disparities

when it correctly calculates and carefully reviews that range).

       The “ultimate question” in Psick’s case, just as in other cases, is whether the

sentence was reasonable. Kimbrough, 552 U.S. at 111. Aside from his already-

rejected argument that his low-end-Guidelines sentence violates 18 U.S.C. §

3553(a)(6), Psick does not challenge his sentence as unsupported by the §3553(a)

factors.

AFFIRMED.




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