                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4264


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

JOE FOREST ROSS,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Louise W. Flanagan,
Chief District Judge. (5:07-cr-00153-FL-1)


Submitted:    December 9, 2008              Decided:   January 16, 2009


Before WILKINSON, MOTZ, and TRAXLER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.   George E. B. Holding, United States Attorney, Anne
M. Hayes, Jennifer P. May-Parker, Assistant United States
Attorneys, Julie Weissman, Third Year Law Student, Raleigh,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Joe Forest Ross appeals his 108-month sentence for one

count of receipt of child pornography, in violation of 18 U.S.C.

§ 2252(a)(2) (2006) (“Count One”), and one count of possession

of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B)

(“Count Two”).      Ross pled guilty to both counts without a plea

agreement.

             Under the advisory United States Sentencing Guidelines

Manual (“USSG”), Ross was subject to an imprisonment range of 97

to 121 months for Count One and 97 to 120 months for Count Two.

Ross was assigned a base offense level of twenty-two pursuant to

USSG   § 2G2.2(a)(2).          His    offense      level     was   decreased    by   two

levels, pursuant to USSG § 2G2.2(b)(1), because his conduct was

limited to the receipt of material involving sexual exploitation

of a minor and he did not intend to traffic in, or distribute,

such    material.       His    offense      level     was    enhanced   by:    (1)   two

levels because the material involved a prepubescent minor who

had    not   attained   the     age    of    twelve    years,      pursuant    to    USSG

§ 2G2.2(b)(2); (2) four levels because the material portrayed

sadistic conduct, pursuant to USSG § 2G2.2(b)(4); (3) two levels

because the offense involved the use of a computer, pursuant to

USSG    § 2G2.2(b)(6);        and    (4)    five    levels    because   the    offense

involved 600 or more images, pursuant to USSG § 2G2.2(b)(7)(D).

His offense level was reduced by three levels for acceptance of

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responsibility, pursuant to USSG § 3E1.1(b), for a total offense

level of thirty, and his criminal history category was I because

he has no significant prior convictions.

            Ross requested a downward variance from the advisory

guidelines range in the district court.                   He argued that the

statutory    minimum    term   of     five   years’   imprisonment    would    be

sufficient to accomplish the goals of sentencing enumerated in

18 U.S.C. § 3553(a) (2006).            He contended that he was entitled

to a lenient sentence because he had no prior convictions, a

stable employment history, a close relationship with his family,

and because there was no evidence to indicate that he ever had

direct sexual contact with children.             The district court denied

Ross’s motion for a downward variance based upon its finding

that the factors identified in his arguments were already taken

into account in determining the advisory guidelines range, and

its determination that the extremely large amount of pornography

Ross   possessed      would    have    justified      a   sentence   above    the

guidelines range.        The court indicated that it would consider

Ross’s arguments for a variance in determining where within the

guidelines    range     he    should    be   sentenced.        The   Government

presented a victim impact statement written by a teenage girl

who was depicted in images that Ross possessed, and requested a

sentence at the high end of the guidelines range.



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            The district court stated that it had considered the

advisory guidelines range and the sentencing factors set forth

in § 3553(a) and sentenced Ross to concurrent sentences of 108

months’    imprisonment    and    life       terms    of    supervised     released.

Ross filed a timely notice of appeal.                On appeal, he argues that

this sentence is unreasonable because the district court treated

the advisory guidelines range as presumptively reasonable and

did not adequately consider the § 3553(a) factors or explain the

reasons for his sentence.           He also contends that a sentencing

range determined pursuant to USSG § 2G2.2 is not entitled to a

presumption of reasonableness on appeal because the guideline

was not formulated based upon careful review and analysis by the

United     States      Sentencing        Commission,         but     instead        was

legislatively altered by Congress to increase the penalties for

child    pornography   offenses.         He   argues       that,   based    upon    the

§ 3553(a) factors, his sentence is greater than necessary to

serve the purposes of criminal sentencing.

            We   review   a   sentence        to     determine     whether     it   is

reasonable, applying an abuse of discretion standard.                        Gall v.

United States, 128 S. Ct. 586, 596 (2007).                         This court may

presume that a sentence imposed within the properly calculated

advisory    guidelines    range     is    reasonable.          United      States   v.

Pauley, 511 F.3d 468, 473 (4th Cir. 2007); see Rita v. United

States, 127 S. Ct. 2456, 2462-68 (2007).                    In Gall, the Supreme

                                         4
Court reiterated that the decision in Rita to allow an appellate

presumption       of       reasonableness             for      sentences       within      the

guidelines      range      was     based    in       part    upon    the     fact   that   the

guidelines are “the product of careful study based on extensive

empirical      evidence       derived       from      the    review     of    thousands     of

individual sentencing decisions.”                          128 S. Ct. at 594 (citing

Rita,    127    S.     Ct.    2456).         The       Court    also       noted    that   the

guidelines sentencing ranges for drug offenses are based upon

the     statutory       mandatory          minimum         sentences       established      by

Congress for such crimes, rather than upon empirical evidence,

and that this distinction affects a district court’s authority

to deviate from the guidelines range in certain drug cases.                                Id.

at 594 n.2 (citing Kimbrough v. United States, 128 S. Ct. 558

(2007)).       In Kimbrough, the Court described a series of attempts

by the Sentencing Commission to amend the guidelines for crack

cocaine    offenses,         in    order     to      reduce    the     disparity      between

sentences for distribution of crack cocaine and powder cocaine,

that were rebuffed by Congress.                   128 S. Ct. at 565-69.

               A district court must explain the sentence it imposes

sufficiently         for      this       court        to     effectively       review      its

reasonableness,         but       need     not       mechanically      discuss      all    the

factors listed in § 3553(a).                      United States v. Montes-Pineda,

445 F.3d 375, 380 (4th Cir. 2006).                            The court’s explanation

should indicate that it considered the § 3553(a) factors and the

                                                 5
arguments raised by the parties.                      Id.     This court does not

evaluate the adequacy of the district court’s explanation “in a

vacuum,”     but     also    considers            “[t]he    context     surrounding      a

district court’s explanation.”                Id. at 381.

            The district court did not abuse its discretion in

sentencing    Ross    to     108   months’         imprisonment.        As    an   initial

matter, Ross has not cited any court decisions discussing the

alleged    disagreement        between        the     Sentencing       Commission      and

Congress regarding the guidelines for receipt and possession of

child    pornography.          Further,        he    did    not   argue       before   the

district court that the guidelines do not accurately reflect the

seriousness of those offenses as a general matter, only that the

guidelines sentencing range was greater than necessary in this

case.      Accordingly,      he    has    not      convincingly       argued    that   the

presumption of reasonableness on appeal for a sentence within

the guidelines range should not apply here.

            However,        even   without         applying    any     presumption     of

reasonableness, the district court did not abuse its discretion.

The district court stated at the sentencing hearing that it had

considered     the    § 3553(a)          factors      and     Ross     made     extensive

arguments based upon those factors in his motion for a downward

variance, both in writing and at the sentencing hearing, that

were    expressly     considered         by    the    court    in     determining      his

ultimate sentence.           The district court properly found that the

                                              6
factors Ross identified were largely already reflected in his

guidelines offense level and criminal history category, and that

he could have been subject to an upward departure based upon the

extremely large number of images he possessed.           Despite the vast

extent of his conduct, the district court imposed a sentence

that was twelve to thirteen months below the high end of the

advisory guidelines range for his offenses.

          We affirm the district court’s judgment.              We dispense

with oral argument because the facts and legal contentions are

adequately   presented   in   the   materials   before    the    court   and

argument would not aid the decisional process.

                                                                   AFFIRMED




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