     Case: 11-31017     Document: 00511862083         Page: 1     Date Filed: 05/21/2012




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

                                                                            FILED
                                                                           May 21, 2012
                                     No. 11-31017
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DAVID MICHAEL WHITTEN,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:11-CR-62-12


Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        David Michael Whitten appeals his 420-month above-guidelines sentence
imposed following his guilty plea to engaging in a child exploitation enterprise.
Whitten argues that this sentence was excessive and unreasonable because the
gravity of his offense was reflected in the sentencing guidelines range.
        Generally, this court reviews the substantive reasonableness of a sentence
for an abuse of discretion. United States v. McElwee, 646 F.3d 328, 337 (5th Cir.
2011). Whitten raised some but not all the specific arguments in the district

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-31017

court that he raises on appeal. His newly raised arguments are subject to plain
error review. See United States v. Mondragon, 564 F.3d 357, 361 (5th Cir. 2009).
 Because the instant sentence may be affirmed under either standard, our
opinion will discuss the issues under the stricter form of review. See United
States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008)
      In reviewing the substantive reasonableness of a sentence, the court
should consider “the totality of the circumstances, granting deference to the
district court’s determination of the appropriate sentence based on the [18
U.S.C.] § 3553(a) factors.” McElwee, 646 F.3d at 337 (internal quotations and
citations omitted). The extent of the deviation should also be evaluated giving
deference to the district court’s determination that the 18 U.S.C. § 3553(a)
factors warrant the extent of the variance. Id.
      Whitten argues that the district court placed too much weight on his 1992
convictions, which were based on the unproven allegations by the victim of his
twenty-year old prior conviction. He contends that there was no evidence that
he admitted those facts or that the prosecution had actual evidence to support
the allegations. Because Whitten failed to present any competent evidence to
dispute the detailed facts describing the offenses in the presentence report (PSR)
and did not deny committing the offenses, the district court was entitled to
consider the information in the PSR in determining the sentence. See United
States v. Parker, 133 F.3d 322, 329 (5th Cir. 1998).
      While acknowledging the seriousness of the offense charged, Whitten
contends that its gravity was reflected in the guidelines range and that the
district court should have given greater consideration to the fact that his only
prior criminal conduct occurred over 20 years prior to the instant offense and
that he had complied with the sexual offender registration requirements
following his conviction. The district court specifically determined that the
Guidelines failed to adequately consider that Whitten’s prior conduct involved
the repeated molestation of a child for ten years and the forcible rape of the girl

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                                  No. 11-31017

at age 14. Consideration was given to the fact that Whitten had registered as
a sexual offender after his prior convictions, but the district court determined
that his present involvement in child pornography indicated that he remained
a threat to the public. The district court was entitled to consider Whitten’s
criminal history in imposing a non-guidelines sentence, especially since the
district court discussed the egregious facts underlying the prior conviction and
their relationship to the § 3553(a) factors. See McElwee, 646 F.3d at 338; United
States v. Smith, 440 F.3d 704, 709 (5th Cir. 2006).
      Whitten challenges the district court’s perception that there was a link
between his 1992 convictions for sexual abuse of a child and his present offense,
contending that there was no empirical evidence in the record to support that
conclusion. The district court specifically found that Whitten’s past conduct
involving child molestation and rape was intertwined with the images that
Whitten was posting on the Dreamboard and found an “inextricable link”
between his prior and present conduct. The production of empirical evidence
was not necessary to support the district court’s consideration of the premise
that sexual offenders are often recidivists. See United States v. Allison, 447 F.3d
402, 406-07 (5th Cir. 2006)
      Whitten’s suggestion that the district court should have considered his
advanced age as a factor in sentencing him is not persuasive because advanced
age is not generally a relevant factor to be considered in determining whether
to impose a long sentence. See U.S.S.G. § 5H1.1. In light of the gravity of his
conduct, the district court did not abuse its discretion in determining that
Whitten’s age was not a significant factor in determining the sentence.
      Arguing that he was penalized for pleading guilty early and being among
the first of the defendants sentenced, Whitten asserts that the district court did
not have to “rank” him among defendants because the Guidelines provided for
enhancements and took his criminal history into account. Section 3553(a)
instructs that an unwarranted disparity should be avoided among defendants

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                                   No. 11-31017

with “similar records who have been found guilty of similar conduct.” The
district court clearly considered Whitten’s early plea and cooperation, but after
comparing Whitten’s behavior to that of his codefendants and the sentences it
imposed on them, it determined that Whitten’s sentence should be above the
guidelines range. Such a determination was reasonable. Gall v. United States,
552 U.S. 38, 54-55 (2007).
      Lastly, Whitten complains that the lengthy sentence effectively cancelled
the credit he received for his acceptance responsibility. The district court
adopted the PSR, which recommended a three-level reduction of Whitten’s
offense level for the acceptance of responsibility, thus, establishing the starting
point for the variance. Gall, 552 U.S. at 50 n.6; United States v. Lara, 975 F.2d
1120, 1126 (5th Cir. 1992). The fact that the upward variance rendered the
reduction of Whitten’s offense level for acceptance of responsibility a non-
significant factor did not make the sentence unreasonable.
      The district court engaged in detailed discussion of the specific facts that
it considered in balancing the § 3553(a) factors and that discussion did not
reflect that the district court failed to take into account a factor that should have
received significant weight, that it gave significant weight to an irrelevant or
improper factor, or that it made a clear error in balancing the § 3553(a) factors.
See United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006).
      A significant deviation does not constitute an abuse of discretion if it is
“commensurate with the individualized, case-specific reasons provided by the
district court.” McElwee, 646 F.3d at 338 (internal quotation and citation
omitted). For that reason, the district court did not abuse its discretion or
plainly err in determining the sentence, and the judgment of the district court
is AFFIRMED.




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