                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 10-2960
                                      ____________

                           UNITED STATES OF AMERICA

                                            v.

                                    BRIAN ELSTON,

                                                 Appellant
                                      ____________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                               (D.C. No. 5-09-cr-00091-001)
                     District Judge: Honorable James Knoll Gardner
                                      ____________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 11, 2011

               Before: FISHER, JORDAN and COWEN, Circuit Judges.

                             (Opinion Filed: April 13, 2011 )
                                     ____________

                               OPINION OF THE COURT
                                    ____________

FISHER, Circuit Judge.

       Brian Elston pleaded guilty to one count of possession of child pornography, in

violation of 18 U.S.C. § 2252(a)(4)(B), and the United States District Court for the

Eastern District of Pennsylvania sentenced him to 78 months‟ imprisonment and 25

years‟ supervised release. Elston now appeals, arguing that the District Court erred in
failing to consider his argument that the child-pornography guideline is unreasonable.

For the following reasons, we will affirm the District Court.

                                             I.

       We write for the parties, who are familiar with the factual context and legal history

of this case. Therefore, we will set forth only those facts necessary to our analysis.

       Pennsylvania State Police discovered Elston sharing child pornography on a “peer

to peer” computer network. A search of Elston‟s home revealed over 250 video files and

1,900 images of child pornography. Elston was arrested and later pleaded guilty to

possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B).

       The Probation Office calculated Elston‟s advisory guideline range. Pursuant to

U.S.S.G. § 2G2.2(a)(1), the base offense level was calculated to be 18. Two levels were

added pursuant to § 2G2.2(b)(2) because the pornographic material involved

prepubescent minors, and four additional levels were added pursuant to § 2G2.2(b)(4)

because the images involved sadomasochism perpetrated on children. Two additional

levels were added pursuant to § 2G2.2(b)(6) because Elston used a computer for

possession, transmission, receipt, or distribution. Finally, there was a five-level increase

pursuant to § 2G2.2(b)(7)(D) because the offense involved more than 600 images. Elston

received a three-level reduction because of acceptance of responsibility, resulting in a

total offense level of 28. He had a criminal history category of I, yielding a guideline

range of 78 to 97 months.


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      Elston requested a downward variance based on a history of mental health issues,

drug use, childhood trauma and sexual abuse, his low risk of recidivism, and the

empirically unsound nature of the child pornography guideline. He presented a report

and testimony from a psychiatrist who stated that Elston was a low risk for recidivism

and was not a danger to the public. Elston also argued that the child pornography

guideline is unduly severe. He claimed that U.S.S.G. § 2G2.2 is not the product of the

Sentencing Commission‟s traditional empirical approach but was adopted at the direction

of Congress. In support of his argument, Elston submitted an article: Troy Stabenow,

Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the

Child Pornography Guidelines.

      The Court stated that it reviewed all of the evidence presented before making its

determination to impose a sentence:

      I have reviewed a number of voluminous materials in connection with this
      difficult case very closely and carefully reading and in some instances,
      rereading and rereading the Government‟s sentencing memorandum, all of
      the exhibits to the defense sentencing memorandum with the exception of
      Exhibit A, a lengthy article dated January 1, 2009 by an author named Troy
      Stabenow . . . entitled “Deconstructing The Myth of Careful Study: A
      Primer” . . . .

      I reviewed the table of contents in that article and I reviewed the charts and
      some of the charts and graphs in that article, but I only glanced at the – in a
      cursory fashion at the writing itself of that 38 page article, but the rest of
      the defense exhibits I have reviewed and read very carefully.




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(App. at 303.) The Court considered Elston‟s request for a downward variance but

ultimately concluded that he had committed a serious offense. Elston was sentenced to

78 months‟ imprisonment, and he filed a timely appeal.

                                            II.

      The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have

jurisdiction over Elston‟s appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

      Our decision in United States v. Gunter requires district courts to follow a three-

step sentencing procedure:

      (1) Courts must continue to calculate a defendant‟s Guidelines sentence
      precisely as they would have before [United State v. Booker, 543 U.S. 220,
      125 S. Ct. 738, 160 L.Ed.2d 621 (2005)].

      (2) In doing so, they must formally rule on the motions of both parties and
      state on the record whether they are granting a departure and how that
      departure affects the Guidelines calculation, and take into account our
      Circuit‟s pre- Booker case law, which continues to have advisory force.

      (3) Finally, they are required to exercise their discretion by considering the
      relevant [18 U.S.C. ]§ 3553(a) factors in setting the sentence they impose
      regardless whether it varies from the sentence calculated under the
      Guidelines.

462 F.3d 237, 247 (3d Cir. 2006) (internal citations, quotation marks, and brackets

omitted). It is undisputed that the District Court complied with steps one and two. The

parties disagree as to whether the Court complied with step three.

      We review the procedural and substantive reasonableness of a sentence for abuse

of discretion. Gall v. United States, 522 U.S. 38, 51 (2007). Claims of procedural error


                                             4
are subject to plenary review. United States v. Levinson, 543 F.3d 190, 195 (3d Cir.

2008). Elston argues that the District Court did not consider one of his arguments for a

lower sentence. A district court‟s “fail[ure] to consider the §3553(a) factors” can create a

procedurally unreasonable sentence. Id. at 195 (quoting Gall, 552 U.S. at 51). We

review whether the Court gave “meaningful consideration to the § 3553(a) factors.”

United States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006).

                                             III.

       Elston does not challenge the substantive reasonableness of his sentence but

claims that the District Court committed a procedural error in failing to consider the

argument that § 2G2.2 is unreasonable because it is not empirically based. But in support

of his argument, Elston cites a statement by the District Court that it merely did not read

the entire 38-page article submitted by Elston. In fact, the District Court stated that it

thoroughly considered every argument presented by Elston in his defense memorandum,

which included the argument that § 2G2.2 is empirically flawed. We need not base our

decision upon such a finding, however. For even if the District Court did not consider

Elston‟s argument for a variance based on the empirical soundness of § 2G2.2, we must

affirm his sentence.

       We have made clear that a district court is not required to conduct an investigation

of an empirical challenge to the Sentencing Guidelines. “[A] district court is not required

to engage in „independent analysis‟ of the empirical justifications and deliberative


                                              5
undertakings that led to a particular Guideline.” United States v. Lopez-Reyes, 589 F.3d

667, 671 (3d Cir. 2009) (internal citations omitted). It certainly remains true that

defendants are permitted to make such policy-based arguments and that district courts

may make variances based on them. See Kimbrough v. United States, 552 U.S. 85

(2007); United States v. Grober, 624 F.3d 592, 609 (3d Cir. 2010) (holding that district

courts have discretion to vary from the child pornography guideline on the ground that it

is flawed). But this discretion in no way means that district courts are under an

obligation to investigate and consider the empirical underpinnings of the Guidelines

every time such an argument is raised. “Kimbrough does not force district or appellate

courts into a piece-by-piece analysis of the empirical grounding behind each part of the

sentencing guidelines.” Lopez-Reyes, 589 F.3d at 671 (quoting United States v. Duarte,

569 F.3d 528, 530 (5th Cir. 2009)). It may be the case that district courts find the child

pornography guideline to be flawed in particular cases and vary for this reason. But

“[w]e emphasize that we do not hold that § 2G2.2 will always recommend an

unreasonable sentence, and district courts must, of course, continue to consider the

applicable Guideline range.” Grober, 624 F.3d at 609. In other words, district courts

have the discretion but not the obligation to consider variances based on arguments that

the Guidelines are empirically flawed.

       The record indicates that the District Court heard and considered arguments from

defense counsel and weighed the § 3553(a) factors in making its decision. Elston argues


                                              6
that district courts are under an obligation to “acknowledge and respond to any properly

presented sentencing argument which has colorable legal merit and a factual basis.”

United States v. Ausburn, 502 F.3d 313, 328-29 (3d Cir. 2007). But, at the same time, the

court “need not discuss and make findings as to each of the § 3553(a) factors if the record

makes clear that the court took the factors into account in sentencing.” United States v.

Kononchuk, 485 F.3d 199, 204 (3d Cir. 2007). All that we require is that “[t]he

sentencing judge . . . set forth enough to satisfy the appellate court that he has considered

the parties‟ arguments and has a reasoned basis for exercising his own legal

decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356 (2007). In its

thorough analysis of the § 3553(a) factors, consisting of a point-by-point consideration of

the psychiatrist‟s testimony and a review of the defendant‟s request for a variance, the

District Court satisfied this requirement.

                                             IV.

       For the foregoing reasons, we will affirm the judgment of the District Court.




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