United States v. Bronnenberg , 353 F. App'x 939 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 30, 2009
No. 08-20662
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JAMES ALBERT BRONNENBERG,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:07-CR-451-ALL
Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
James Albert Bronnenberg pleaded guilty to possession of child
pornography involving the sexual exploitation of minors and was sentenced to
a 78-month term of imprisonment. Bronnenberg argues that his within-
guidelines sentence is both procedurally and substantively unreasonable. He
does not suggest that the computation of the applicable guidelines was error, but
he contends that the sentencing court plainly erred by failing to provide specific
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-20662
reasons for rejecting his argument that U.S.S.G. § 2G2.2, the sentencing
guideline for child pornography, is not empirically based; the court gave
improper weight to the 18 U.S.C. § 3553(a) sentencing factors; and his sentence
is substantively unreasonable because § 2G2.2 is entitled to little or no deference
and the § 3553(a) factors do not warrant a 78-month sentence.
A within-guidelines sentence is accorded a presumption of reasonableness
regardless whether the guidelines provision upon which it is based is empirically
grounded. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009),
cert. denied, 2009 WL 3162196 (October 5, 2009) (No. 09-6195); see also United
States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert. denied, 2009
WL 1849974 (October 5, 2009) (No. 08-11099). By imposing a sentence within
the applicable sentencing guidelines, the district court implicitly rejected
Bronnenberg’s challenge to the validity of § 2G2.2. Bronnenberg has not shown
that the district court plainly erred by failing to address this argument
specifically. See Mondragon-Santiago, 564 F.3d at 365-67. The district court’s
extensive sentencing reasons show that the court imposed a reasonable sentence
based on the § 3553(a) sentencing factors. See United States v. Campos-
Maldonado, 531 F.3d 337, 338 (5th Cir.), cert. denied, 129 S. Ct. 328 (2008);
United States v. Douglas, 569 F.3d 523, 528 (5th Cir. 2009). The fact that
Bronnenberg’s within-guideline sentence is based on a sentencing guideline that
is not supported by empirical data does not render it unreasonable. See United
States v. Lemus-Gonzalez, 563 F.3d 88, 94-95 (5th Cir. 2009), cert. denied sub
nom Gonzalez-Fernando v. United States, 2009 WL 1574257 (October 5, 2009)
(No. 08-10761). Accordingly, the sentence is AFFIRMED.
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