     Case: 10-11015     Document: 00511555333         Page: 1     Date Filed: 07/29/2011




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

                                                                            FILED
                                                                            July 29, 2011
                                     No. 10-11015
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

CHRISTOPHER J. ABBATE,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:10-CR-29-1


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
        Christopher J. Abbate appeals from his conviction of possession of child
pornography.       He argues that the district court imposed a substantively
unreasonable sentence by varying from his 78-97 month advisory guideline
sentencing range to the maximum statutory sentence of 120 months of
imprisonment. He also challenges as substantively unreasonable the life term
of supervised release imposed by the district court.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 10-11015    Document: 00511555333       Page: 2   Date Filed: 07/29/2011

                                   No. 10-11015

      The appellant’s brief articulates the factors listed at § 3553(a), then
contends that Abbate’s sentence was longer than necessary to achieve these
factors because of his military service; because his offense did not involve the
actual distribution of pornography; because the only evidence of criminal conduct
during his life were the images underlying his criminal offense and the
statements of his former girlfriend to investigators; because evidence presented
at sentencing suggested that his former girlfriend lied about when she became
sexually active with him and when she became pregnant; and because he is a
loving father who worked to provide for his children.
      Abbate’s arguments based on United States v. Dorvee, 616 F.3d 174 (2d
Cir. 2010), are raised for the first time on appeal. Those arguments are reviewed
under the plain error standard. See United States v. Magwood, 445 F.3d 826,
828 (5th Cir. 2006). To establish plain error, a defendant must show a forfeited
error that is clear or obvious and that affects his substantial rights. Puckett v.
United States, 129 S. Ct. 1423, 1429 (2009). If the defendant makes such a
showing, this court has the discretion to correct the error, but only if it seriously
affects the fairness, integrity, or public reputation of judicial proceedings. Id.
      Reliance on Dorvee is misplaced. We will not second-guess a district
court’s sentencing decision on the basis that a particular guideline may not be
empirically based. United States v. Mondragon-Santiago, 564 F.3d 357, 367 (5th
Cir. 2009).
      Defense counsel did not place his sentencing memorandum or its
supporting documents into the record when given the opportunity to do so by the
district court. Abbate has failed to satisfy his burden of ensuring that this court
has a record sufficient to consider any of those materials, see United States v.
Dunham Concrete Prods., Inc., 475 F.2d 1241, 1251 (5th Cir. 1973), including
any evidence in those materials that might have called into question his former
girlfriend’s credibility. Moreover, the district court did not state that Abbate’s
relationship with his former girlfriend had any effect on the sentence.

                                         2
  Case: 10-11015    Document: 00511555333      Page: 3    Date Filed: 07/29/2011

                                 No. 10-11015

      The district court varied upward to 120 months of imprisonment from a
78-97 month guideline range. The court expressed concern that Abbate was not
a typical pornography defendant, as he had been viewing child pornography for
10 years and had a collection of 20,000 images of minors of all ages. The images
described in the presentence report showed children as victims of violent adult
sexual conduct and as participants in bestiality.        The district court thus
addressed in detail Abbate’s history and characteristics and the seriousness of
his offense. The district court stated that the 120-month sentence would protect
the public from further crimes that Abbate might commit. The district court did
not provide a detailed explanation about how the public would be protected, but
the record indicates that Abbate was a dedicated consumer of images depicting
the extreme sexual exploitation of children.
      The explanation for the variance was consistent with 18 U.S.C. § 3553(a).
See United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006). Moreover, the
same reasons provided for the variance justified the degree of the variance.
Abbate’s sentence of imprisonment was 23 months higher than the high end of
the guideline sentencing range. He possessed a very large amount of extremely
violent, exploitative child pornography; in some of the video images, screaming
could be heard. The imposition of the statutory maximum prison sentence on
Abbate was reasonable and was not an abuse of discretion. See United States.
v. Cisneros-Gutierrez, 517 F.3d 751 764 (5th Cir. 2008).
      A sentence within a properly calculated guideline sentencing range is
entitled to a rebuttable presumption of reasonableness on appellate review.
United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). Abbate’s
sentence to a life term of supervised release was recommended by the
Guidelines, see § 5D1.2(b)(2), p.s., and is presumptively reasonable. See Gomez-
Herrera, 523 F.3d at 565-66. Abbate has presented no arguments rebutting the
presumption of reasonableness given to his sentence of supervised release.
      AFFIRMED.

                                       3
