     Case: 19-40059       Document: 00515161923         Page: 1     Date Filed: 10/17/2019




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

                                                                                FILED
                                                                           October 17, 2019
                                     No. 19-40059
                                   Summary Calendar                          Lyle W. Cayce
                                                                                  Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JARRED W. MASSEY,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 3:18-CR-5-1


Before BARKSDALE, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Jarred W. Massey challenges his within-Guidelines sentence of, inter
alia, 210-months’ imprisonment, imposed following his guilty-plea conviction
for distributing, possessing, and receiving child pornography, in violation of 18
U.S.C. §§ 2252A(a)(2)(B) and 2252A(a)(5)(B). His request in district court for
a downward variance was denied.




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 19-40059

      In contending his sentence is substantively unreasonable, he asserts the
district court erred in balancing the 18 U.S.C. § 3553(a) sentencing factors, by
giving undue, significant weight to Sentencing Guideline § 2G2.2 (providing
base-offense levels and enhancements for those convicted of certain offenses
involving child pornography), which he claims is flawed. Massey also contends
the court failed to adequately consider his personal circumstances, the specific
facts of his offense, and the need to avoid unwarranted sentencing disparities.
Further, he complains the court ignored evidence that the majority of courts
grant variances in child pornography cases because Guideline § 2G2.2 results
in disproportionately severe sentences compared to other, more violent crimes.
      Although post-Booker, the Guidelines are advisory only, the district
court must avoid significant procedural error, such as improperly calculating
the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 46, 51
(2007). If no such procedural error exists, a properly preserved objection to an
ultimate sentence is reviewed for substantive reasonableness under an abuse-
of-discretion standard. Id. at 51; United States v. Delgado-Martinez, 564 F.3d
750, 751–53 (5th Cir. 2009). In that respect, for issues preserved in district
court, its application of the Guidelines is reviewed de novo; its factual findings,
only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751,
764 (5th Cir. 2008).
      As noted, Massey challenges only the substantive reasonableness of his
sentence; therefore, we review for abuse of discretion. Gall, 552 U.S. at 51.
And, in reviewing a sentence that falls within a properly-calculated Guidelines
sentencing range, as in this appeal, our court applies a presumption of
reasonableness. United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
Massey may rebut the presumption only if he shows his sentence “does not
account for a factor that should receive significant weight, . . . gives significant



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                                 No. 19-40059

weight to an irrelevant or improper factor, or . . . represents a clear error of
judgment in balancing sentencing factors”. United States v. Cooks, 589 F.3d
173, 186 (5th Cir. 2009) (citation omitted).
      The majority of Massey’s appellate brief is devoted to a policy-based
contention that Guideline § 2G2.2 is disproportionately punitive and
automatically warrants a variance. As Massey concedes, however, our court
has rejected similar challenges. See United States v. Miller, 665 F.3d 114, 116,
119, 121 (5th Cir. 2011) (upholding substantive reasonableness of a within-
Guidelines sentence for transportation of child pornography conviction and
stating: “the Guidelines remain the Guidelines. It is for the commission to
alter or amend them”. (citation omitted)).
      The record establishes the district court considered the Guidelines, the
parties’ assertions, and, in particular, Massey’s reasoning as to why the court
should impose a sentence below the Guidelines sentencing range, but
concluded that, based on all of the sentencing factors, a sentence at the low end
of the advisory Guidelines range was appropriate. Massey’s assertion the court
failed to give adequate weight to mitigating factors, including his remorse, his
family support, and his post-offense psychiatric rehabilitation, is refuted by
the record.
      Massey contends the court failed to adequately consider that his
sentence creates an unwarranted sentencing disparity. Because the sentence
imposed is within the properly-calculated Guidelines sentencing range,
“avoiding unwarranted general sentencing disparities is not a factor that we
grant significant weight . . . ”. United States v. Diaz, 637 F.3d 592, 604 (5th
Cir. 2011) (citation omitted).
      Massey’s contention the district court erred in balancing the 18 U.S.C.
§ 3553(a) sentencing factors amounts to a mere disagreement with the weight



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the court afforded his mitigating contentions.   Massey fails to rebut the
presumption of reasonableness applicable to his within-Guidelines sentence.
     AFFIRMED.




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