                                                                               FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                      UNITED STATES COURT OF APPEALS                      July 30, 2009

                                 TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                          Clerk of Court
                            __________________________

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                        No. 09-4010
                                                            (D. Utah)
 COREY MICHAEL GEARHART,                        (D.Ct. No. 2:08-CR-00594-JTG-1)

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before HARTZ, EBEL, and O’BRIEN, Circuit Judges.



      The parties have waived oral argument. See Fed. R. App. P. 34(f); 10th

Cir. R. 34.1(G). We will decide this case on the briefs.

      Corey Michael Gearhart pled guilty to possession of child pornography

under 18 U.S.C. § 2252A(a)(5)(B). The district court imposed a 97 month

sentence. Gearhart appeals from that sentencing, arguing the court: 1) abused its

discretion by sentencing as though the guidelines were mandatory and 2)


      *
         This order and judgment is not binding precedent. 10th Cir. R. 32.1(A). Citation
to orders and judgments is not prohibited. Fed. R. App. 32.1. But it is discouraged,
except when related to law of the case, issue preclusion or claim preclusion. Any citation
to an order and judgment must be accompanied by an appropriate parenthetical notation --
(unpublished). 10th Cir. R. 32.1(A).
committed plain error in treating the guidelines as though they were mandatory.

The arguments are based upon one statement made by the judge:

      [A]fter due consideration, I’m going to impose a sentence at the --
      the Guideline sentence. I think the Guideline -- advisory Guidelines
      do have application here, and will sentence as though the Guidelines
      were mandatory in the sense that they seem to have a lot of sense and
      would be applicable . . . . So I’m going to impose a sentence at the
      low end of the Guideline range, 97 months . . . .

(R. Vol. II at 40.) That statement, taken without contextual reference, does not

carry the load Gearhart heaps on it. Taken in context, it refutes his arguments.

      We have reviewed the transcript of the sentencing hearing. It is clear the

judge recognized the advisory nature of the guidelines and sentenced accordingly.

We need not decide whether our review is for plain error as there was no error.

AFFIRMED.

       Appellee’s Stipulation to Correct the Record is NOTED.



                                       Entered by the Court:

                                       Terrence L. O’Brien
                                       United States Circuit Judge




                                         -2-
