                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 09-2264


                           UNITED STATES OF AMERICA


                                            v.

                              RYAN ADAMS RODGERS,
                                              Appellant




                   Appeal of a Judgment of Sentence Entered in the
          United States District Court for the Western District of Pennsylvania
                             (Crim. No. 1-07-cr-00057-001)
                         District Judge: Maurice B. Cohill, Jr.


                      Submitted under Third Circuit L.A.R. 34.1(a)
                                   February 2, 2010

              Before: McKEE, Chief Judge, HARDIMAN, Circuit Judge,
                          and POLLAK, District Judge.*

                                 (Filed: May 11, 2010 )


                                       OPINION




      *
         Honorable Louis H. Pollak, Senior Judge of the United States District Court for
the Eastern District of Pennsylvania, sitting by designation.
POLLAK, District Judge

       Appellant Ryan Adam Rodgers challenges the length of the sentence imposed on

him after a guilty plea to two counts of violating 18 U.S.C. § 2252(a)(1), (b)(1)

(transportation and attempted transportation of material depicting the sexual exploitation

of a minor), and one count of violating 18 U.S.C. § 2252(a)(2), (b)(1) (receipt and

distribution of material depicting the sexual exploitation of a minor). He argues his

sentence was both procedurally and substantively unreasonable. We will affirm.

                                               I.

       Immigration and Customs Enforcement (ICE) officers conducted an international

undercover operation targeting distribution of child pornography over an internet file

sharing service. During this operation, Rodgers sent hundreds of images to two

undercover ICE officers. Over a period of approximately nine months, Rodgers

possessed and traded well over 600 images of child pornography, stills and movies,

depicting young children engaged in sexual acts. Rodgers also told agents that he had

sexual contact with specific children, including his cousin, and with his own mother. The

stories Rodgers told to the agents were not true. ICE executed a search warrant of

Rodgers’ house uncovering hundreds of images of child pornography. Rodgers faced

four counts for activities involving the trading of child pornography over his computer.1

       1
         As Court Four, possession of child pornography, was a lesser-included offense to receipt
of child pornography, Rodgers’ open plea to all counts charged did not result in an adjudication

                                               2.
       At the time of his arrest, Rodgers was 22 years old and had no prior criminal

record or record of delinquency. Rodgers’ employer, family, and friends testified that his

viewing child pornography was inconsistent with what they knew of him. He lived with

his parents and had dropped out of college due to a seizure disorder that prevented him

from driving.

       During sentencing, Rodgers, after changing counsel, withdrew his objections to the

presentence report’s guideline calculation of 210 to 262 months and agreed the guideline

range was correctly calculated. This was based on a stipulation that the offense level was

a 37 with a criminal history category of I. He, however, asked for a variance.

       Rodgers introduced testimony from a psychologist who specialized in sex offender

treatment. The psychologist found that several factors indicated that Rodgers would

respond well to treatment: such pertinent factors were that he was open about his actions,

he had accepted blame, he was willing to engage in treatment, he was receiving treatment

for depression, he had a supportive family, and he had the ability to show empathy to

victims. However, the psychologist diagnosed Rodgers as a pedophile due to his being “a

predator on the internet.” He also stated that Rodgers should not have contact with

children without the approval of his therapist or future probation officer and that Rodgers

was a danger to children. The psychologist also acknowledged, on cross-examination,

that certain factors, such as viewing images of bestiality and bondage, and fantasies about



of guilt on Count Four and he did not receive a sentence for Count Four.

                                               3.
specific children, presented challenges to Rodgers’ treatment.

       Rodgers argued that the sentencing enhancements for the use of the computer,

number of images, and possession of images of prepubescent children, were inappropriate

for his case, as such factors are present in almost all offenses of this type. The District

Court decided to alter the guideline range by lowering the offense level by two levels,

thus removing the enhancement for use of a computer, as that enhancement was present

in most cases and resulted in a sentence “greater than is necessary to provide just

punishment.” With the removal of that enhancement, the guideline range was 168 to 210

months. The District Court sentenced Rodgers to 168 months to be followed by 15 years

of supervised release. This was at the low end of the guideline range following the

removal of the enhancement.

                                              II.

       We review the District Court’s sentence for abuse of discretion. Gall v. United

States, 552 U.S. 38, 51 (2007). We begin by reviewing for any procedural errors. United

States v. Sevilla, 541 F.3d 226, 230 (3d Cir. 2008). We then review the substantive

reasonableness of the sentence regardless of whether it falls within the proper range

established by the guidelines. Id. at 230. In United States v. Gunter, 462 F.3d 237 (3d

Cir. 2006), we articulated a three-step process for the district court to follow: 1) the

district court must calculate the defendant’s guidelines sentence, 2) the district court must

formally rule on motions and state whether it is granting a departure, and 3) it must



                                              4.
exercise discretion in considering the 18 U.S.C. § 3553(a) factors. Id. at 247.

       Rodgers argues that the District Court committed procedural error by inadequately

explaining its application of the§ 3553(a)2 factors and by not addressing why it rejected

Rodgers’ request of a sentence of a six-and-half-year prison term followed by an extended

period of supervised release.

       A district court “must adequately explain the chosen sentence to allow for

meaningful appellate review and to promote the perception of fair sentencing.” Gall, 552

U.S. at 50. In its explanation, the district court must “acknowledge and respond to any

properly presented sentencing argument which has colorable legal merit and a factual


       2
           Section 3553(a) requires consideration of the following factors:

   (1) the nature and circumstances of the offense and the history and characteristics of the
   defendant;
   (2) the need for the sentence imposed--
       (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide
       just punishment for the offense;
       (B) to afford adequate deterrence to criminal conduct;
       (C) to protect the public from further crimes of the defendant; and
       (D) to provide the defendant with needed educational or vocational training, medical
       care, or other correctional treatment in the most effective manner;
   (3) the kinds of sentences available;
   (4) the kinds of sentence and the sentencing range established for--
       (A) the applicable category of offense committed by the applicable category of
       defendant as set forth in the guidelines
       ...
   (5) any pertinent policy statement--
       ...
   (6) the need to avoid unwarranted sentence disparities among defendants with similar
   records who have been found guilty of similar conduct; and
   (7) the need to provide restitution to any victims of the offense.

18 U.S.C. § 3553(a).

                                                  5.
basis.” United States v. Ausburn, 502 F.3d 313, 329 (3d Cir. 2007) (citing United States

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

       The District Court’s discussion of the § 3553(a) factors, albeit brief, was not the

sort of “rote statement” of the § 3553(a) factors that we found problematic in Ausburn.

502 F.3d at 329. The District Court clearly considered the nature of the offense and

characteristics of the defendant. The court departed downward by removing the

enhancement for use of a computer, because in that respect Rodgers’ offense was not

exceptional. The court also discussed Rodgers’ lack of a prior criminal history and the

potential benefits of Rodgers receiving mental health and alcohol treatment. Thus the

District Court considered the individual circumstances of Rodgers and his offense.

       The District Court also considered the need for the sentence, the kinds of sentences

available and the sentencing range under the guidelines, while adjusting the sentence to

avoid unwarranted disparities among defendants with similar records. The court noted

that the sentence reflected the seriousness of the crime and provided just punishment for

it, while also allowing Rodgers to receive education and vocational training to gain

employment once released. This discussion, together with the removal of the use of a

computer enhancement, shows a consideration of the sentence, the guideline range, and

alternatives.

       Rodgers argues that it was procedural error to not expressly consider the proposed

six-and-a-half-year sentence. However, the District Court considered the argument on



                                             6.
which the recommendation was based–that the enhancements for use of a computer,

images of prepubescent minors, and number of images were inappropriate enhancements

as such factors were present in most cases. While it is the preferred course to expressly

address the defendant’s arguments, a district court need not “explicitly rule on every

argument that may be advanced, if other aspects of the sentencing decision make a ruling

implicit.” United States v. Goff, 501 F.3d 250, 256 n.10 (3d Cir. 2007). The District

Court granted a departure based on the rationale advanced by Rodgers with regard to the

use of a computer enhancement, thus showing consideration of the argument, even though

the court did not remove all the suggested enhancements. In addition, the District Court

stated it considered the psychologist’s testimony and the potential for Rodgers’ treatment.

Thus, the District Court did address the arguments advanced by Rodgers at sentencing.

       Rodgers also argues that his sentence is substantively unreasonable due to the fact

that he is a 22-year-old, first-time offender, who is receiving treatment for substance

abuse and depression, and is likely to respond well to treatment for sex offenders. Our

substantive review requires us not to focus on one or two factors, but on the totality of the

circumstances. United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc). “If

the district court's sentence is procedurally sound, we will affirm it unless no reasonable

sentencing court would have imposed the same sentence on that particular defendant for

the reasons the district court provided.” Id. at 568.

       The sentence imposed by the District Court was reasonable. While Rodgers argues



                                              7.
that there are mitigating factors such as his lack of a criminal record and ability to be

treated, the facts of Rodgers’ offense are quite serious. Rodgers possessed and traded

several hundred extremely graphic images of very young children. His own expert

diagnosed him as a pedophile and stated that he continued to be a threat to children.

Given the severity of the offense and the psychologist’s opinion that he posed a danger to

children, we cannot say that the sentence was substantively unreasonable.

                                             III.

       For the reasons stated, we will affirm the sentence of the District Court.




                                              8.
