United States v. Ross , 307 F. App'x 727 ( 2009 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
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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
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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
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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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