                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 13-1830
                                     _____________

                           UNITED STATES OF AMERICA

                                            v.

                               MATTHEW ACKERMAN,
                                               Appellant
                                  _____________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                           (D.C. No. 5-11-cr-00740-001)
                    District Judge: Honorable James K. Gardner
                                  _____________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                    May 22, 2015
                                   _____________

       Before: FUENTES, GREENAWAY, JR., and NYGAARD, Circuit Judges.
                            (Filed: June 8, 2015)

                                     _____________

                                       OPINION
                                    ______________




       
       This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
GREENAWAY, JR., Circuit Judge.

      Appellant Matthew Ackerman appeals the District Court’s sentence, imposed after

he pled guilty to receipt of child pornography, possession of child pornography, and

conspiracy to receive, distribute, and possess child pornography. Ackerman contends

that the District Court’s sentence was substantively and procedurally unreasonable

because the District Court failed to meaningfully consider Ackerman’s arguments for a

downward variance. For the reasons that follow, we will affirm the District Court’s

judgment of conviction.

                              I. BACKGROUND

      This case stems from a federal investigation into a large-scale child pornography

ring. In the course of that investigation, law enforcement officers received information

that implicated Ackerman and co-defendant Thomas Syfor in the receipt and possession

of child pornography. A legal search of Ackerman’s residence recovered printed images

depicting child pornography, several computers, and a camera that contained images of

adolescent boys playing in a playground across the street from Ackerman’s residence. A

search of the computers revealed thousands of images and dozens of videos of child

pornography.

      Ackerman pled guilty to receipt of child pornography, in violation of 18 U.S.C.

§ 2252(a)(2), and possession of child pornography and aiding and abetting, in violation of

18 U.S.C. § 2252(a)(4)(B) and § 2. A related case was transferred to the District Court;

Ackerman entered a guilty plea in that case to one count of conspiracy to receive,


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

(a)(4)(B), (b)(l) and (b)(2).

       At sentencing, the Government presented uncontested evidence that Ackerman

possessed 60 videos files and over 2,000 images of child pornography. The Government

also presented evidence that Ackerman and Syfor: (1) engaged in a sexual conversation

with a 16-year-old male; (2) performed a sex act on video camera for another minor

male; and (3) arranged to meet a 15-year-old boy at a local park.1 The District Court also

heard testimony presented by Ackerman, including testimony of Dr. Frank Dattilio, a

clinical and forensic psychologist that offered expert testimony on the treatment and

assessment of sex offenders.

       Based on a criminal history category of I and an offense level of 37, Ackerman’s

Guidelines range was 210 to 262 months in prison. The District Court imposed a

sentence of 210 months’ imprisonment.

                                II. ANALYSIS2

       Ackerman argues that the District Court’s sentence was procedurally and

substantively unreasonable.3 Under our three-step sentencing framework, district courts



       1
        The boy mistook two other men at the park for Ackerman and Syfor and a fight
broke out when the boy made sexually suggestive comments to them. Ackerman left
without meeting the boy.
       2
       The District Court had jurisdiction over this case pursuant to 18 U.S.C. § 3231.
We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
       3
        We review sentences “under a deferential abuse-of-discretion standard.” Gall v.
United States, 552 U.S. 38, 41 (2007). “[W]e are to ensure that a substantively
reasonable sentence has been imposed in a procedurally fair way.” United States v.
                                            3
must: (1) “calculate a defendant’s Guidelines sentence,” (2) “formally rul[e] on the

motions of both parties and stat[e] on the record whether they are granting a departure,”

and (3) “exercise[ ] [their] discretion by considering the relevant [§ 3553(a)] factors in

setting the sentence they impose.” United States v. Gunter, 462 F.3d 237, 247 (3d Cir.

2006) (citations and quotations omitted) (alterations in original). Under the third step, the

district court “must ‘acknowledge and respond to any properly presented sentencing

argument which has colorable legal merit and a factual basis.’” Flores-Mejia, 759 F.3d

at 256 (quoting United States v. Begin, 696 F.3d 405, 411 (3d Cir. 2012)).

       Ackerman does not challenge the District Court’s application of the first and

second steps; therefore, we do not address them here. As to step three, Ackerman claims

that the District Court did not “meaningfully consider [] Ackerman’s arguments for a

downward variance.”4 Appellant Br. at 16. Although district courts are under an

obligation to “acknowledge and respond to any properly presented sentencing argument

which has colorable legal merit and a factual basis,” United States v. Ausburn, 502 F.3d

313, 329 (3d Cir. 2007), they “need not discuss and make findings as to each of the


Levinson, 543 F.3d 190, 195 (3d Cir. 2008). When no objection is made in the district
court, sentencing procedure is reviewed for plain error. United States v. Flores-Mejia,
759 F.3d 253, 256 (3d Cir. 2014) (en banc). Because Ackerman was sentenced before
Flores-Mejia was issued, review for abuse of discretion is proper. Id. at 259. “Applying
that standard, we have held that a district court abuses its discretion when it fails to give
‘meaningful consideration’ to an argument advanced by the defendant.” Id.
       4
        Specifically, Ackerman focuses on four issues he claims the District Court
ignored: (1) Ackerman’s lack of prior criminal history; (2) Ackerman’s claim that he was
a victim of sexual abuse as a child; (3) the conclusion of Dr. Dattilio that Ackerman is a
low risk for reoffending and is amenable to treatment; and (4) Ackerman’s claim that the
child pornography guidelines are empirically unsound.

                                              4
§ 3553(a) factors if the record makes clear that the court took the factors into account in

sentencing.” United States v. Kononchuk, 485 F.3d 199, 204 (3d Cir. 2007). All we

require is that “[t]he sentencing judge . . . set forth enough to satisfy the appellate court

that he has considered the parties’ arguments and has a reasoned basis for exercising his

own legal decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356 (2007).

       The sentencing colloquy evidences that the District Court heard and considered

argument from defense counsel and was thorough in its consideration of the § 3553(a)

factors. Notably, the District Court permitted Dr. Dattilio to testify at great length, over

the course of two days, and interjected its own questions on several occasions. Although

the District Court recognized the presence of a “few mitigating factors,” it concluded that

they “justified a . . . sentence . . . in the lower range of the Guidelines.” App. 705.

Further, the District Court found that this was “the only extent to which [] mitigation

[was] appropriate . . . because of the heinousness of these crimes.” App. 705. The record

demonstrates the Gunter test is met. There is no procedural error.5

       We next consider the substantive reasonableness of the sentence. Our review of

the application of the § 3553(a) factors focuses on the totality of the circumstances and is


       5
         As noted supra, Ackerman also claims that the District Court failed to consider
sufficiently Ackerman’s argument that the child pornography Guidelines merit lesser
deference in this case, as they are not “empirically based.” Appellant Br. at 19 (emphasis
omitted). However, as we emphasized in United States v. Grober, “if a district court does
not in fact have a policy disagreement with § 2G2.2, it is not obligated to vary on this
basis.” 624 F.3d 592, 609 (3d Cir. 2010). Furthermore, the District Court imposed the
lowest possible within-Guidelines sentence. Accordingly, we remain unconvinced by
Ackerman’s argument and conclude the sentence he received was not procedurally
unreasonable.

                                               5
highly deferential. United States v. Tomko, 562 F.3d 558, 567–68 (3d Cir. 2009).

Indeed, even if this Court would have imposed a different sentence, we must not do so as

long as any reasonable court could have imposed the given sentence. Id. at 568. The

District Court’s sentence of 210 months for three counts related to receiving and

distributing child pornography satisfied all of the elements of a substantively reasonable

sentence. The District Court fully justified its sentence and gave appropriate

consideration to the § 3553(a) factors. Ackerman’s Guidelines range was 210 to 262

months. The District Court sentenced Ackerman to the lowest possible Guidelines

sentence. Ackerman has not met his burden of showing that a reasonable sentencing

court would not have imposed the same sentence.

                             III. CONCLUSION

       For the foregoing reasons, we will affirm the judgment of conviction of the

District Court.




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