                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                     FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                                FEB 26, 2010
                              No. 09-13068                       JOHN LEY
                          Non-Argument Calendar                    CLERK
                        ________________________

                   D. C. Docket No. 08-00105-CR-3-MCR

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

CHARLES CUNNINGHAM,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Northern District of Florida
                       _________________________

                             (February 26, 2010)

Before EDMONDSON, BIRCH and WILSON, Circuit Judges.

PER CURIAM:

     Charles Cunningham appeals his 60-month sentence, imposed below the
applicable guideline range of 78 to 97 months’ imprisonment, after pleading guilty

to possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and

(b)(2). On appeal, he argues that the district court, in imposing his sentence,

committed procedural error by improperly failing to consider all of his history and

characteristics. Also, he argues that the 60-month sentence was unwarranted under

the circumstances. Cunningham requested that the district court depart further

downward and give him a more lenient sentence because his conduct was

uncharacteristic of a classic pedophile.

      In reviewing the reasonableness of a sentence, we apply an abuse-of-

discretion standard using a two-step process that begins with determining whether

the district court committed any significant procedural error. If no procedural error

is found, then we examine whether the sentence is substantively reasonable under

the totality of the circumstances. United States v. Pugh, 515 F.3d 1179, 1189–90

(11th Cir. 2008). The party challenging the sentence has the burden of establishing

unreasonableness in light of the record and the 18 U.S.C. § 3553(a) factors. United

States v. Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006).

      First, the district court did not commit procedural error. The court correctly

calculated the appropriate guideline range. Moreover, there is no suggestion that

clearly erroneous facts were relied upon or that the court failed to explain



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adequately the sentence. Second, Cunningham’s sentence is not substantially

unreasonable. The district court properly considered the § 3553(a) factors. The

court considered the guidelines, the arguments of the parties, and the § 3553(a)

factors, and rendered an individualized sentence, one that included a downward

variance, resulting in a sentence that is five years less than the statutory maximum.

The court explained the basis for the chosen sentence, stating that Cunningham’s

offense was serious, involving more than 1,100 erotic or pornographic images of

children and nine “hardcore” pornographic videos. Cunningham bought and

downloaded illicit material over an eight-month period. The court stated that it

was important to impose a term of imprisonment of several years to deter similar

criminal conduct by others and mete out justice for the child victims. The court

noted that the sentence was at the low end of the range in four out of five similar

possession cases in the district. Finally, the court noted that it took Cunningham’s

age and health into account in imposing its sentence.

      Accordingly, Cunningham has not satisfied his burden of establishing

procedural or substantive unreasonableness in light of the record and the § 3553(a)

factors. We affirm the judgment of the district court.

      AFFIRMED.




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