United States v. Larry McLendon ( 2014 )

Case: 14-60036 Document: 00512841235 Page: 1 Date Filed: 11/18/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 14-60036
Fifth Circuit
FILED
Summary Calendar November 18, 2014
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
LARRY L. MCLENDON,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 1:13-CR-95-1
Before DeMOSS, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM: *
Larry L. McLendon appeals the within-guidelines sentence imposed
following his guilty plea conviction of possession of child pornography. He
argues that the district court procedurally erred by applying U.S.S.G.
§ 2G2.2(b)(2) and that the district court failed to properly consider the
sentencing factors set forth at 18 U.S.C. § 3553(a).
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-60036 Document: 00512841235 Page: 2 Date Filed: 11/18/2014
No. 14-60036
McLendon’s arguments are insufficient to establish that the district
court’s finding that the images involved prepubescent minors or minors who
had not yet reached 12 years of age was not plausible in light of the record as
a whole. See United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.
2008). Additionally, the record is sufficient to demonstrate that McLendon
either intended to possess such images or that he had a reckless disregard for
the age of the performers. See United States v. Perez, 484 F.3d 735, 745 (5th
Cir. 2007). Accordingly, the district court did not err by applying § 2G2.2(b)(2).
McLendon’s argument that the district court procedurally erred by
failing to consider the § 3553(a) factors is belied by the record. His remaining
arguments regarding the reasonableness of the sentence do not show clear
error of judgment on the district court’s part in balancing those factors;
instead, they constitute a mere disagreement with the weighing of the
§ 3553(a) factors. See United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009);
United States v. Mejia-Huerta, 480 F.3d 713, 720 & n.17 (5th Cir. 2007). This
court will not reweigh the § 3553(a) factors. Gall v. United States, 552 U.S. 38,
51 (2007). McLendon has failed to rebut the presumption of reasonableness
applicable to his within-guidelines sentence. See Cooks, 589 F.3d at 186.
The judgment is AFFIRMED.
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