                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0342n.06

                                            No. 12-3298

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                         FILED
UNITED STATES OF AMERICA,                            )                               Apr 05, 2013
                                                     )                        DEBORAH S. HUNT, Clerk
       Plaintiff-Appellee,                           )
                                                     )
v.                                                   )       ON APPEAL FROM THE
                                                     )       UNITED STATES DISTRICT
RYAN K. KLEPPER,                                     )       COURT FOR THE NORTHERN
                                                     )       DISTRICT OF OHIO
       Defendant-Appellant.                          )
                                                     )
_____________________________________                )



       BEFORE: GIBBONS and WHITE, Circuit Judges; COHN, District Judge.*


       PER CURIAM. Ryan K. Klepper, a federal prisoner, appeals through counsel the sentence

imposed following his 2011 guilty plea to charges of receiving and transporting child pornography.

       At the sentencing hearing, the district court first calculated the sentencing guidelines range.

The court declined to apply one of the enhancements recommended by the presentence report, for

use of a computer (R.E. 26, pp. 5-6), but otherwise adopted the report’s conclusions. The guidelines

sentencing range was calculated to be 168 to 210 months. Defendant presented the testimony of a

physician who had been hired as an expert to examine him, who concluded that Klepper was

borderline mentally retarded and suffered from ADHD and depression (R.E. 26, pp. 13-16). The

district court discussed the sentencing factors, particularly the seriousness of the offense (R.E. 26,

       *
       The Honorable Avern Cohn, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 12-3298
United States v. Klepper

pp. 31-32). He opined that the sentencing guidelines range of fourteen to seventeen and one half

years was greater than necessary, but that the mandatory minimum of five years was insufficient, and

imposed a sentence of 97 months, which the court concluded would provide sufficient punishment,

deterrence, and rehabilitation (R.E. 26, pp. 33-34).

        On appeal, Klepper argues that his sentence is procedurally unreasonable because the court

imposed enhancements for depiction of prepubescent children, for the number of depictions

involved, and for the depiction of sadism or masochism. He also argues that his sentence is

substantively unreasonable because the district court imposed a longer sentence to promote

rehabilitation.

        We review sentences for procedural and substantive reasonableness. Gall v. United States,

552 U.S. 38, 51 (2007). First, we “ensure that the district court committed no significant procedural

error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence

based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” Id. Here,

Klepper argues that the district court procedurally erred in applying several enhancements, but he

made no such objection below, so we review for plain error. See United States v. Simmons, 587 F.3d

348, 357–58 (6th Cir. 2009). Klepper advances no argument in support of his claim that the district

court’s application of the enhancements amounted to “double-counting,” and it is not apparent that

the depiction of prepubescent children, the number of depictions, and the depiction of sadism or

masochism are overlapping in any sense.         Instead, he argues that the application of these

enhancements, set forth in USSG § 2G2.2, is necessarily error, relying on the criticism of the

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United States v. Klepper

enhancements in United States v. Dorvee, 616 F.3d 174, 186-87 (2d Cir. 2010). However, the

Second Circuit has relied on Dorvee only for the proposition that a judge may give a non-guidelines

sentence for the reasons discussed. United Sates v. Salim, 690 F.3d 115, 126 (2d Cir. 2012), cert.

denied,133 S.Ct. 901 (2013). The district court here plainly recognized its authority to reject

application of the enhancements, as it did with regard to the enhancement for use of a computer.

Other courts, including our own, have noted that a district court may vary from the guidelines based

on a policy disagreement, but is not required to do so. See United States v. Hammonds, 468 F.

App’x 593, 598 (6th Cir. 2012) (unpublished); United States v. Henderson, 649 F.3d 955, 964 (9th

Cir. 2011). Here, the district court properly calculated the sentencing guidelines range and then

granted Klepper a significant reduction to slightly over half the bottom of the range. No plain error

has been demonstrated.

       If no procedural error occurred, we “then consider the substantive reasonableness of the

sentence imposed under an abuse-of-discretion standard.” Gall, 552 U.S. at 51. “[A] sentence may

be substantively unreasonable if the district court chooses the sentence arbitrarily, grounds the

sentence on impermissible factors, or unreasonably weighs a pertinent factor.” United States v.

Brooks, 628 F.3d 791, 796 (6th Cir. 2011), cert. denied, 131 S.Ct. 3077 (2011). Klepper argues that

the district court impermissibly imposed a longer sentence to promote rehabilitation, citing Tapia

v. United States, 131 S.Ct. 2382, 2385 (2011). In Tapia, the sentencing court stated that it was

imposing a sentence lengthy enough to allow the defendant to complete a prison rehabilitation

program. No such discussion took place in this case. Therefore, Klepper has no basis for

challenging his sentence based on Tapia. The sentence is substantively reasonable.

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United States v. Klepper

       Accordingly, the district court’s judgment is affirmed.




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