     Case: 15-11203      Document: 00513809780         Page: 1    Date Filed: 12/22/2016




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

                                    No. 15-11203                               FILED
                                  Summary Calendar                     December 22, 2016
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JUSTIN BENEDICT MORALES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 6:15-CR-20-1


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Justin Benedict Morales appeals his within-guidelines sentence of 235
months following his guilty plea conviction for transportation of child
pornography in violation of 18 U.S.C. § 2252A(a)(1). Morales argues that the
district court imposed an unreasonable sentence of 235 months by applying the
child pornography guideline enhancements of U.S.S.G. § 2G2.2 for use of a
computer and possession of more than 600 images. He contends that these


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-11203     Document: 00513809780     Page: 2   Date Filed: 12/22/2016


                                  No. 15-11203

enhancements are not supported by empirical evidence and do not distinguish
between varying levels of culpability among offenders.
      We review sentences for reasonableness, in light of the 18 U.S.C.
§ 3553(a) factors, under an abuse of discretion standard. Gall v. United States,
552 U.S. 38, 49-51 (2007).       A within-guidelines sentence is entitled to a
presumption of reasonableness. See Rita v. United States, 551 U.S. 338, 347
(2007). “The presumption is rebutted only upon a showing that the sentence
does not account for a factor that should receive significant weight, it gives
significant weight to an irrelevant or improper factor, or it represents a clear
error of judgment in balancing sentencing factors.” United States v. Cooks, 589
F.3d 173, 186 (5th Cir. 2009).
      Morales’s claim that § 2G2.2 lacks an empirical basis, and, therefore,
fails to distinguish between the least culpable and most culpable defendants,
is foreclosed by our precedent. See United States v. Miller, 665 F.3d 114, 121–
22 (5th Cir. 2011).
      Arguing that his sentence is substantively unreasonable, Morales
contends that although these enhancements may be appropriate in egregious
cases, their application resulted in an unreasonably long sentence under the
facts of his case. He contends that the district court failed to recognize the
specific circumstances of his case and abused its discretion by failing to impose
a below-guidelines sentence. He argues that these enhancements have little
or no value in determining a sentence that is sufficient but not greater than
necessary to achieve the sentencing goals of § 3553(a). Further, he argues that
the facts of his offense suggest a lower culpability than that suggested by the
guideline range.
      The   district   court   considered   Morales’s   personal   history   and
characteristics and the other statutory sentencing factors in § 3553(a).



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                                 No. 15-11203

Morales’s disagreement with the district court’s weighing of the § 3553(a)
factors is insufficient to rebut the presumption of reasonableness that attaches
to a within-guidelines sentence. See Cooks, 589 F.3d at 186. He has not
demonstrated that the district court abused its discretion by sentencing him to
a within-guidelines sentence of 235 months. See Gall, 552 U.S. at 51. The
judgment of the district court is AFFIRMED.




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