                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-5006


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

STEPHEN MCKINLEY BLACKMAN,

                Defendant – Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.   Terry L. Wooten, District Judge.
(4:10-cr-00491-TLW-1)


Submitted:   May 20, 2011                     Decided:   June 8, 2011


Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael A. Meetze, Assistant Federal Public Defender, Florence,
South Carolina, for Appellant.      William N. Nettles, United
States Attorney, Robert F. Daley, Jr., William E. Day, II,
Assistant United States Attorneys, Columbia, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Stephen McKinley Blackman pled guilty to one count of

failure to register as a sex offender, in violation of 18 U.S.C.

§ 2250(a) (2006).             On appeal, he challenges his twenty-eight-

month sentence, arguing the district court abused its discretion

in   denying    his     motion       for   a     downward        variance    and    that     his

sentence,      in    this     regard,      is       procedurally      and    substantively

unreasonable.        We affirm.

            By written motion prior to sentencing and again at

sentencing,      Blackman          requested        a   downward     variance       on    three

grounds.       First,        Blackman      requested        the    district       court    vary

downward    based      on     his    policy         argument      that     U.S.    Sentencing

Guidelines          Manual     (USSG)           § 2A3.5      (2009),        as      presently

constituted, allows only a two-level reduction for acceptance of

responsibility for tier I and tier II offenders whereas tier III

offenders may receive as much as a three—level reduction for

acceptance      of      responsibility,              resulting       in,     according       to

Blackman, an unwarranted sentencing disparity among defendants

with   similar       records       that    have      been   found    guilty        of   similar

conduct.     Second, Blackman argued a sentence in the Guidelines

range was greater than necessary to accomplish the goals of 18

U.S.C.     § 3553(a)          (2006),       because         he     merely         violated     a

registration         provision       of     a       non-punitive         statute.         Last,

Blackman,      focusing       on    the    “characteristics          of     the    defendant”

                                                2
factor   of   18   U.S.C.   § 3553(a)(1),       alleged       he   has   “ongoing

problems with substance abuse” and that “the vast majority of

the incidents listed in his presentence report are substance

abuse related as charged.”

           At sentencing on September 20, 2010, Blackman made no

objections    to   the   presentence       report   or   to    the    established

advisory   Guidelines     range.   The       district     court      first   heard

lengthy argument on Blackman’s motion for a variance based on

his policy argument pertaining to USSG § 2A3.5.                      The district

court ultimately denied the motion, stating:

          I’m not prepared to conclude that the Guidelines
     are flawed.   And I am not sure that you are arguing
     that they are flawed.   It is just a question of the
     Commission giving anybody a little more break—or an
     opportunity for a reduction; is that the right way to
     describe it—for a higher-tiered defendant and then,
     therefor [sic], based on your position, the lesser-
     tiered defendant end up with less off and the higher-
     tiered defendant who starts at a higher level gets
     more off.

          It might be worthwhile—and, again, it is up to
     the Commission—it is not up to the court—to, at least,
     consider that circumstance—and maybe they did, maybe
     they did, but consider than circumstance—and see if it
     requires any change.

           But I do not find that the Guidelines are flawed
     in connection with this nor that it is such an
     inequity that it would be a basis for me to vary in
     this case on this basis. . . . I am not prepared to
     conclude that the Commission’s policy is flawed
     because of the decisions that were made, a new
     [G]uideline coming in and allowing for the three
     levels. But I have considered your position and I do
     not conclude that it is a basis for a variance in this
     case.

                                       3
            Blackman    again      posited    as   his   second    basis      for   a

downward variance that “failure to register cases are different

than other criminal cases[,] because the purpose of                    . . . SORNA

[Sex Offender Registration and Notification Act] . . . is not to

punish people.”      The court denied the motion on this argument,

responding that “[t]here is a criminal penalty that comes into

play . . . in the end, [SORNA] does provide for a criminal

punishment that has withstood Ex Post Facto arguments.”                         With

respect to Blackman’s reliance on his substance abuse related

offenses, the district court acknowledged that Blackman had some

substance    abuse     treatment       problems,   but   concluded       that    the

record did not support a basis for the district court to vary.

            After hearing from the parties and allowing Blackman

an opportunity to allocute, the district court analyzed the 18

U.S.C. § 3553(a) factors, with due consideration to this Court’s

pronouncement in United States v. Carter, 564 F.3d 325, 328 (4th

Cir. 2009), that district courts should render an individualized

sentence in imposing sentence.                The district court sentenced

Blackman towards the bottom of the Guidelines range to twenty-

eight months’ imprisonment.

            On appeal, Blackman argues the district court erred in

denying     his   motion     for   a    downward    variance      on    the     three

specified grounds and that the district court’s denial of his

motion    rendered     his   sentence      procedurally    and     substantively

                                          4
unreasonable.       A sentence is reviewed for reasonableness under

an abuse of discretion standard.                     Gall v. United States, 552

U.S. 38, 51 (2007).            This review requires consideration of both

the    procedural      and    substantive         reasonableness            of   a    sentence.

Id.; see United States v. Lynn, 592 F.3d 572, 575 (4th Cir.

2010).      A    sentence        imposed      within       the    properly           calculated

Guidelines range is presumed reasonable by this court.                                   United

States v. Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010).

            In    determining          the    procedural         reasonableness          of    a

sentence,       this     court      considers       whether       the       district      court

properly    calculated        the     defendant’s        Guidelines          range,    treated

the Guidelines as advisory, considered the 18 U.S.C. § 3553(a)

factors, analyzed any arguments presented by the parties, and

sufficiently explained the selected sentence.                          Gall, 552 U.S. at

51.    Blackman does not dispute that the district court properly

calculated his Guidelines range under the advisory Guidelines.

However,    he    argues      his     sentence      is    procedurally           unreasonable

because the district court treated the Guidelines as mandatory.

Specifically,       he    argues,      when    the       district      court      denied      his

motion for a downward variance based on his Guideline policy

argument, the district court improperly stated it was not up to

the    court,     but        rather     the       Commission,          to     consider        the

circumstance and see if it required any change.                             Blackman argues

that     this     statement         indicates        that        the        district      court

                                              5
effectively     treated       the    Guidelines         as    mandatory.              Similarly,

Blackman claims the district court treated the Guidelines as

mandatory in rejecting his motion for a downward variance on the

ground that he violated the registration provision of a non-

punitive statute.

           Because       Blackman          requested          a       sentence       below       the

Guidelines      range    on    the    above-cited            grounds,          his    claim      was

properly preserved, and we review for reasonableness under an

abuse of discretion standard, reversing “unless . . . the error

was   harmless.”         Lynn,       592    F.3d       at     576,       578    (“By       drawing

arguments from § 3553 for a sentence different than the one

ultimately imposed, an aggrieved party sufficiently alerts the

district court of its responsibility to render an individualized

explanation addressing those arguments, and thus preserves its

claim.”); cf. United States v. Hernandez, 603 F.3d 267, 270 (4th

Cir. 2010) (reviewing claim of procedural unreasonableness for

plain   error    because      defendant          did    not       argue    for       a    sentence

different from the sentence that he received).

           It is now well established that a district court may

consider     policy      objections         to      the       Sentencing             Guidelines.

Kimbrough v. United States, 552 U.S. 85, 101-07 (2007).                                           In

Kimbrough,    the   Supreme         Court    held      that       a     district         court   may

deviate from the advisory Guidelines range for crack cocaine

offenses   based    on    its       conclusion         that       the    disparity         between

                                             6
ranges    for   crack      and    powder           cocaine       results     in    a     sentence

greater    than    necessary        to        achieve         the    sentencing         goals      of

§ 3553(a).      Id. at 91.        The Court has since reinforced the point

that     “district      courts          are     entitled            to    reject       and        vary

categorically      from     the     .    .     .       Guidelines        based    on    a    policy

disagreement with those Guidelines.”                           Spears v. United States,

555 U.S. 261,             , 129 S. Ct. 840, 843-44 (2009).                         In Moore v.

United States, 555 U.S. 1, 1 (2008) (per curiam), the Court held

that the sentencing court committed procedural error because it

did not believe it had discretion to depart from the Guidelines

under Kimbrough,          because       it    stated          “Congress     is    the       one    who

looks at the [G]uidelines and decides whether or not they should

be put in-in force . . . . It isn’t the judges.”                                 Id.; see also

United    States     v.    Herder,           594       F.3d    352,      362-63    (4th       Cir.)

(vacating sentence when district court “refused to consider a

variation from the Guidelines in light of the 67:1 ratio between

crack and powder cocaine at Herder’s offense level” because the

district court found that “‘Congress has decided that that’s an

appropriate ratio to establish’”), cert. denied, 130 S. Ct. 3440

(2010).

            While in isolation the district court’s statement that

it is up to the Commission to decide whether a change in the

Guideline is warranted supports Blackman’s contention, a review

of the district court’s entire analysis makes clear that the

                                                   7
district     court        recognized         its     authority    to     vary    from     the

Guidelines       range     in    Blackman’s        case    but    simply       declined    to

exercise that authority.                Specifically, the court stated: “I do

not find that the Guidelines are flawed in connection with this

nor that it is such an inequity that it would be a basis for me

to vary in this case on this basis . . . . I am not prepared to

conclude that the Commission’s policy is flawed because of the

decisions that were made . . . .”

             This court has made clear that an appellate court’s

analysis should focus on what the district court “actually did,”

not on whether it used some forbidden phrase.                           Mendoza-Mendoza,

597   F.3d    at      218-19     (instructing         appellate     courts      should    not

“nitpick” or “flyspeck” every transcript they review, or play

“Gotcha!” with district court judges).                       Rather, to afford the

appropriate amount of deference to district court judges, this

court     must     look     to    the     “full       context”    of     the    sentencing

transcript       to    determine        whether      the   district      court    properly

understood its rights and responsibilities.                            Id.     We conclude

the record reflects that the district court acknowledged its

authority to vary from the Guidelines range with regard to the

Guideline        policy     argument,          but     ultimately       disagreed        with

Blackman’s argument, thereby denying the motion.

             Blackman’s          cursory     argument      that   the    district       court

treated      the      Guidelines        as    mandatory      with      respect     to     his

                                               8
assertion that SORNA is not a punitive statute is without merit.

Blackman construes the district court’s words that there is a

criminal     penalty    and       a    Guideline          that     come     into       play     as

indicative of the district court’s treatment of the Guidelines

as mandatory.        Such a reading is unsupported.                       We conclude the

district     court’s       statement          merely        reflected           the     court’s

acknowledgement       that    SORNA          has     a    criminal        penalty       and    an

attendant      Guideline      provision            for     non-compliance             with    the

registration     requirements.               The     district       court’s        statements

therefore      did   not     render          Blackman’s          sentence       procedurally

unreasonable.

             Blackman      also       generally          challenges       the    substantive

reasonableness of his sentence, arguing that the district court

abused its discretion in rejecting the three proffered bases for

a   downward    variance.             To   the     extent     Blackman          suggests      the

district     court     should         have       adopted      his     policy          argument,

Kimbrough    does    not     require       appellate         courts   to        discard       “the

presumption     of     reasonableness              for    sentences       based        on     non-

empirically-grounded Guidelines.”                        United States v. Mondragon-

Santiago, 564 F.3d 357, 366 (5th Cir.), cert. denied, 130 S. Ct.

192 (2009); see also United States v. Talamantes, 620 F.3d 901,

901   (8th   Cir.    2010)     (per        curiam).          While    “district             courts

certainly may disagree with the Guidelines for policy reasons

and may adjust a sentence accordingly[,] . . . if they do not,

                                              9
[appellate courts] will not second-guess their decisions under a

more lenient standard simply because the particular Guideline is

not empirically-based.”            Mondragon-Santiago, 564 F.3d at 367.

We therefore conclude the presumption of reasonableness applies

to this court’s review of Blackman’s sentence.

            Blackman’s      arguments    on     appeal    fail    to    rebut    the

presumption that his within-Guidelines sentence was reasonable.

In this case, the district court heard argument at length from

both parties on the motion for a downward variance.                     Ultimately,

the   court    explicitly     rejected       Blackman’s     argument     that    the

Guideline      was   flawed    and    found     the      other    two    arguments

unpersuasive grounds to vary.            We conclude Blackman’s sentence

was substantively reasonable.

            Accordingly,      we     affirm     Blackman’s       sentence.        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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