     Case: 19-10354      Document: 00515483762         Page: 1    Date Filed: 07/09/2020




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

                                                                                FILED
                                      No. 19-10354                           July 9, 2020
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff-Appellee

v.

JEFFREY NEAL CUDDINGTON,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 6:16-CR-28-1


Before DENNIS, SOUTHWICK, and HO, Circuit Judges.
PER CURIAM: *
       Jeffrey Neal Cuddington pleaded guilty to the receipt and distribution of
visual depictions of minors engaging in sexually explicit conduct and aiding
and abetting. He timely appealed and now challenges his within-Sentencing
Guidelines prison sentence of 188 months as being both procedurally and
substantively unreasonable.
       Procedurally, Cuddington contends that the district court’s explanation
for its choice of sentence was inadequate in light of evidence he presented on



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-10354

his positive history and characteristics. We review this argument under the
plain-error standard since Cuddington did not raise this issue in the district
court. 1 See United States v. Mondragon-Santiago, 564 F.3d 357, 360-61 (5th
Cir. 2009). A sentencing court must provide “a reasoned basis for exercising
[its] own legal decisionmaking authority.” Rita v. United States, 551 U.S. 338,
356 (2007). “The sentencing judge should 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.” Id. But
context and the record can make clear that the judge’s decision rests upon the
Commission’s reasoning that the Guidelines sentence is proper in the typical
case and his own finding that the case before him is typical. Id. at 359.
Although a sentencing judge “will normally go further and explain why he has
rejected” a nonfrivolous reason for a different sentence, id. at 357, the judge
need not do so where the matter is “conceptually simple . . . and the record
makes clear that the sentencing judge considered the evidence and
arguments,” id. at 359.
       Here, the district court cited only the sentencing factors of punishment
and deterrence, but also adopted the Presentence Investigation Report (PSR)
in sentencing Cuddington within the applicable Guidelines range. We have
held that a statement of reasons citing only deterrence and punishment was


       1  Under the Supreme Court’s recent decision in Holguin-Hernandez v. United States,
140 S. Ct. 762 (2020), Cuddington’s substantive reasonableness arguments are reviewed for
abuse of discretion rather than plain error because he sought a lower sentence than what the
court ultimately imposed. But the Supreme Court in Holguin-Hernandez explicitly declined
to address whether its reasoning applied to procedural reasonableness. 140 S. Ct. at 767
(declining to consider “what is sufficient to preserve a claim that a trial court used improper
procedures in arriving at its chosen sentence” (emphasis in original)). Accordingly, our case
law requiring a specific objection to preserve procedural error remains undisturbed, as we
have previously held in at least one unpublished decision. United States v. Gonzalez-Cortez,
801 F. App’x 311, 312 n.1 (5th Cir. 2020); see also United States v. Dominguez-Alvarado, 695
F.3d 324, 327 (5th Cir. 2012) (“If a defendant fails to properly object to an alleged error at
sentencing, however, the procedural reasonableness of his sentence is reviewed for plain
error.”).

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                                 No. 19-10354

sufficient where it was evident the district court considered the defendant’s
arguments for a lower sentence and rejected them, in part by adopted the PSR’s
reasoning over the defendant’s objections. United States v. Rodriguez, 523 F.3d
519, 525–26 (5th Cir. 2008). Although Cuddington did not object to the PSR,
it is nonetheless clear that the district court considered his arguments for a
lesser sentence based on Cuddington’s personal history. First, the PSR—which
the district court adopted—contained a detailed recitation of that history,
along with a detailed description of the nature of Cuddington’s offense,
including that his hard drive contained 4,501 child pornography images and
183 videos containing child pornography, as well as several victim impact
statements discussing the trauma experienced by victims of child pornography.
Second, Cuddington’s counsel presented those arguments in his sentencing
memorandum and at the sentencing hearing before the district court
announced its sentence. Accordingly, despite its brevity, the district court’s
statement was sufficient when combined with its adoption of the PSR in
imposing a within-Guidelines sentence, as the record makes clear that the
district court “simply found [the] circumstances [here] insufficient to warrant
a sentence lower than the Guidelines range.” Rita, 551 U.S. at 358.
      Substantively, Cuddington asserts that the fact that the district court
sentenced him at the top of the applicable Guidelines range demonstrates that
the district court effectively ignored his arguments and evidence on his history
and characteristics, which he describes as exemplary. This, he maintains, is
enough to rebut the presumption of reasonableness afforded his within-
Guidelines sentence. See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.
2006). Cuddington’s request for a probationary sentence, a sentence at the low
end of the statutory range, or a sentence at the bottom of the Guidelines range
is sufficient to preserve this argument for appellate review under an abuse-of
discretion standard. Holguin-Hernandez, 140 S. Ct. at 766; see Gall v. United

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States, 552 U.S. 38, 51 (2007). In light of the record before us, Cuddington has
not shown “that the sentence does not account for a factor that should receive
significant weight, it gives significant weight to an irrelevant or improper
factor, or it represents a clear error of judgment in balancing sentencing
factors.” United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Although
Cuddington argues that his history and characteristics received effectively no
weight because the district court did not refer to them explicitly, the absence
of an explicit reference to these arguments does not require a conclusion that
the court failed to consider them or accord them appropriate weight. See, e.g.,
United States v. Washington, 480 F.3d 309, 314 (5th Cir. 2007) (concluding that
where defendant’s history, characteristics and the nature of the offense were
discussed at sentencing, the record supported the inference that the district
court considered the relevant factors in imposing a sentence at the high end of
the Guidelines range). Here, again, the district court had before it and adopted
the PSR, which included a detailed discussion of both Cuddington’s personal
military history and a description of the nature of his offense. Moreover,
Cuddington’s counsel presented his personal history arguments to the district
court at sentencing.    See Washington, 480 F.3d at 314.       Cuddington has
therefore failed to rebut the presumption of reasonableness attached to his
within-Guidelines sentence. See id.; Cooks, 589 F.3d at 186.
      For these reasons, the judgment of the district court is AFFIRMED.




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