United States v. Lewis ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4907
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SCOTT A. LEWIS,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver, Jr.,
District Judge. (2:05-cr-00255)
Submitted: February 12, 2007 Decided: March 6, 2007
Before NIEMEYER, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, David R. Bungard, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. Charles T.
Miller, United States Attorney, R. Booth Goodwin II, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Scott A. Lewis pled guilty to mailing, transporting, or
shipping child pornography in interstate commerce by computer, in
violation of 18 U.S.C. § 2252A(a)(1) (2000) and was sentenced to
ninety-seven months in prison, to be followed by a supervised
release term of life. Lewis now appeals his sentence. We affirm.
Lewis contends that his sentence--especially the
supervised release term of life--is unreasonable. We review a
sentence imposed after United States v. Booker, 543 U.S. 220(2005), to determine whether the sentence is “within the
statutorily prescribed range . . . and reasonable.” United
States v. Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005). “[A]
sentence within the proper advisory Guidelines range is
presumptively reasonable.” United States v. Johnson, 445 F.3d 339,
341 (4th Cir. 2006). “[A] defendant can only rebut the presumption
by demonstrating that the sentence is unreasonable when measured
against the [18 U.S.C.A.] § 3553(a) [West 2000 & Supp. 2006]
factors.” United States v. Montes-Pineda, 445 F.3d 375, 379 (4th
Cir.) (internal quotation marks and citation omitted), petition for
cert. filed, U.S.L.W. (U.S. July 21, 2006) (No. 06-5439).
Here, Lewis’ ninety-seven-month prison term falls within
the statutorily prescribed range of five to twenty years, see 18
U.S.C. § 2252A(b)(1) (2000), and within the properly calculated
guideline range of 97-121 months. Further, his supervised release
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term of life also is statutorily authorized, see 18 U.S.C.
§ 3583(k) (2000), and permissible under the guidelines, see U.S.
Sentencing Guidelines Manual § 5D1.2(b), (c) (2005). We note that
§ 5D1.2(c) provides: “(Policy Statement) If the instant offense of
conviction is a sex offense . . ., the statutory maximum term of
supervised release is recommended.” Accordingly, Lewis’ sentence
is presumptively reasonable.
Lewis failed to rebut the presumption. We note that, at
sentencing, Lewis raised several arguments in favor of a release
term of less than life. The district court considered and rejected
Lewis’ arguments. Notably, the court was not persuaded by Lewis’
contentions that his previously spotless criminal record and the
non-violent nature of the instant offense warranted a more lenient
release term. The court’s concern lay with the possibility of
recidivism. In this regard, the court was aware that Lewis
committed the instant offense even though, only two months earlier
in a separate investigation, authorities had seized his computer on
suspicion that Lewis had used it to send or receive child
pornography.
We conclude that Lewis’ sentence was reasonable, and we
affirm. 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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