                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0033n.06
                                                                                            FILED
                                            No. 10-3973
                                                                                       Jan 10, 2012
                           UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                             )
                                                      )
       Plaintiff-Appellee,                            )
                                                      )      ON APPEAL FROM THE
v.                                                    )      UNITED STATES DISTRICT
                                                      )      COURT FOR THE NORTHERN
JONATHAN LEIGH PHILLIPS,                              )      DISTRICT OF OHIO
                                                      )
       Defendant-Appellant.                           )
                                                      )



       BEFORE: SUHRHEINRICH, GIBBONS, and McKEAGUE, Circuit Judges.


       PER CURIAM. Jonathan Leigh Phillips appeals the sentence imposed by the district court

following his guilty plea to receiving or distributing visual depictions of minors engaged in sexually

explicit conduct, in violation of 18 U.S.C. § 2252(a)(2), receiving or distributing child pornography,

in violation of 18 U.S.C. § 2252A(a)(2), and possessing child pornography, in violation of 18 U.S.C.

§ 2252A(a)(5)(B). The district court adopted the offense level calculations in the presentence report,

which determined that Phillips’s total offense level was 37 and that his criminal history category was

IV. The court determined that Phillips’s guidelines range of imprisonment was 292 to 365 months,

but that he was subject to a statutory maximum sentence of 240 months. The court sentenced

Phillips to an effective term of 160 months in prison.

       On appeal, Phillips argues that the sentence was procedurally and substantively unreasonable

for several reasons: (1) the district court erroneously concluded that the child pornography

sentencing guidelines were based on empirical data and the Sentencing Commission’s own expertise
No. 10-3973
United States v. Phillips

rather than congressional directives; (2) the court improperly deferred to the child pornography

guidelines, which are inherently flawed; and (3) the court failed to properly consider his risk of

recidivism.

       We review sentences for both procedural and substantive reasonableness using an abuse-of-

discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). To determine whether a sentence

is procedurally reasonable, we must “ensure that the district court committed no significant

procedural error, such as failing to calculate (or improperly calculating) the Guidelines range,

treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting

a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.”

Id. “For a sentence to be substantively reasonable, it must be proportionate to the seriousness of the

circumstances of the offense and offender, and sufficient but not greater than necessary, to comply

with the purposes of § 3553(a).” United States v. Vowell, 516 F.3d 503, 512 (6th Cir. 2008) (internal

quotation marks omitted). “A sentence may be substantively unreasonable if the district court selects

the sentence arbitrarily, bases the sentence on impermissible factors, fails to consider pertinent

§ 3553(a) factors or gives an unreasonable amount of weight to any pertinent factor.” Id. at 510

(internal quotation marks and alterations omitted).       We apply a rebuttable presumption of

reasonableness to a within-guidelines sentence, see United States v. Vonner, 516 F.3d 382, 389 (6th

Cir. 2008) (en banc), and a defendant’s burden to demonstrate that a below-guidelines sentence was

unreasonable is even more demanding. United States v. Curry, 536 F.3d 571, 573 (6th Cir. 2008).

       The district court’s below-guidelines sentence was not unreasonable. Phillips has not shown

that the court relied on any significant factual inaccuracy concerning the history of the child

pornography guidelines by adopting the discussion set forth in United States v. Cunningham, 680

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United States v. Phillips

F. Supp. 2d 844, 849-51 (N.D. Ohio 2010). Further, although the district court had discretion to

disagree with the child pornography guidelines for policy reasons and to reject the guidelines range

because of that disagreement, it was not required to do so. See United States v. Brooks, 628 F.3d

791, 799-800 (6th Cir.), cert. denied, 131 S. Ct. 3077 (2011). Finally, the district court gave proper

consideration to Phillips’s risk of recidivism by weighing the conclusions in the psychological

evaluation with the difficulty of predicting future behavior and Phillips’s long history of viewing

child pornography.

       Accordingly, we affirm the district court’s sentence.




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