     Case: 18-30146      Document: 00514686197         Page: 1    Date Filed: 10/17/2018




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

                                    No. 18-30146                              FILED
                                  Summary Calendar                      October 17, 2018
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee

v.

JAMES STACEY HARBER,

                                                 Defendant - Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:16-CR-129-1


Before DAVIS, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM: *
       James Stacey Harber pleaded guilty to one count of possessing child
pornography and three counts of producing child pornography. He appeals his
within-guidelines sentence of 70 years of imprisonment, asserting that his
sentence fails to account for factors that should have received significant
weight and that the sentence represents a clear error in judgment in balancing
the sentencing factors.       According to Harber, certain mitigating factors –


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-30146

including his family and employment history, lack of criminal or sexual
misconduct history, his tremendous remorse, the “unique context” of his
offense, his acceptance of responsibility via the plea agreement, and the need
to avoid unwarranted sentence disparities – should have weighed in favor of a
less than 70-year sentence.
      Harber    properly    preserved    his   objection   to   the   substantive
reasonableness of his sentence in the district court, and therefore this court
reviews his sentence for abuse of discretion. See United States v. Peltier, 505
F.3d 389, 391-92 (5th Cir. 2007).
      Where, as here, the district court imposes a consecutive sentence within
a properly calculated guidelines range, the sentence is entitled to a
presumption of reasonableness. See United States v. Candia, 454 F.3d 468,
471, 479 (5th Cir. 2006). Harber argues that the rebuttable presumption of
reasonableness should yield in the face of a sentence that is a result of
consecutively imposed sentences, but he recognizes that his argument is
foreclosed by Candia. Id. Sentences within the properly calculated guidelines
– as herein – are not only presumed to be substantively reasonable, but we will
also infer from such a sentence “that the district court has considered all the
factors for a fair sentence set forth in the guidelines.” Candia, 454 F.3d at 474;
see also United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). “The
presumption of reasonableness is only rebutted upon a showing 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).
      The district court reviewed, listened to, and considered the facts and
circumstances of the case, the arguments of the parties, the specific mitigating



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                                 No. 18-30146

factors identified by Harber, the guidelines, and the 18 U.S.C. § 3553(a) factors
in rendering its determination that a within-guidelines sentence was
appropriate. See Mares, 402 F.3d at 519. Harber’s contentions amount to no
more than a mere disagreement with the district court’s weighing of the
§ 3553(a) factors, which is insufficient to rebut the presumption of
reasonableness that attaches to his within-guidelines sentence. Cooks, 589
F.3d at 186. Moreover, this court will not reweigh the § 3553(a) factors because
“the sentencing judge is in a superior position to find facts and judge their
import under § 3553(a) with respect to a particular defendant.” United States
v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008).
      The judgment of the district court is AFFIRMED.




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