     Case: 10-20835     Document: 00511704258         Page: 1     Date Filed: 12/22/2011




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

                                                                            FILED
                                                                        December 22, 2011
                                     No. 10-20835
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

SANDEEP VERMA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:08-CR-699-1


Before WIENER, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Sandeep Verma appeals the 135-month within-
guidelines sentence imposed by the district court following his conviction for
transportation of child pornography.
        In Gall v. United States, 552 U.S. 38, 51 (2007), the Supreme Court
established a bifurcated process for conducting a reasonableness review. United
States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). We must
determine first whether the district court committed any procedural errors,

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-20835

including “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-including an explanation for any
deviation from the Guidelines range.” Gall, 552 U.S. at 51. If we determine that
the district court’s decision is procedurally sound, we will “consider the
substantive reasonableness of the sentence imposed under an abuse-of-discretion
standard.” Id. A sentence that falls within the applicable guidelines range “is
presumptively reasonable.” United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.
2006); see also Rita v. United States, 551 U.S. 338, 347 (2007) (upholding the
application of the presumption of reasonableness to sentences within a properly
calculated guidelines range).
      Contrary to Verma’s contention, the five-level increase imposed by the
district court pursuant to U.S.S.G. § 2G2.2(b)(7)(D) was warranted; the district
court’s determination that Verma’s possession of the images in question
constituted relevant conduct is plausible in light of the record as a whole. See
United States v. Ekanem, 555 F.3d 172, 175 (5th Cir. 2009). As Verma fails to
identify any ambiguity in § 2G2.2(a), we reject his contention that the rule of
lenity requires that he be afforded a lower base offense level. See United States
v. Shabani, 513 U.S. 10, 17 (1994).
      The district court’s explicit recognition of the advisory nature of the
Sentencing Guidelines belies Verma’s contention that it did not understand its
authority to deviate from the guidelines range. As for Verma’s contention on
appeal that the district court failed adequately to explain the reasons for the
sentence imposed, his failure to object on this basis in the district court limits
our review to plain error. See United States v. Peltier, 505 F.3d 389, 391-92 (5th
Cir. 2007). As Verma fails to show that his sentence would have been different
had the district court offered a fuller explanation for it, he fails to show plain



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                                  No. 10-20835

error. See United States v. Mondragon-Santiago, 564 F.3d 357, 365 (5th Cir.
2009).
      Although Verma asserts that the district court imposed a substantively
unreasonable sentence by rejecting his various policy arguments assailing
§ 2G2.2, including that § 2G2.2 deserves no deference because it lacks empirical
support, we will not second-guess the district court’s sentencing decision on such
grounds. See Mondragon-Santiago, 564 F.3d at 367. The fact that we might
reasonably conclude that a different sentence was appropriate is insufficient to
justify reversal. United States v. Williams, 517 F.3d 801, 809 (5th Cir. 2008).
      AFFIRMED.




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