United States v. Ray Hatton, III , 581 F. App'x 375 ( 2014 )

Case: 13-31186 Document: 00512755641 Page: 1 Date Filed: 09/03/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-31186 FILED
Summary Calendar September 3, 2014
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RAY HATTON, III,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:12-CR-334-1
Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Ray Hatton, III, pleaded guilty to one count of receiving child
pornography. He was sentenced to a within-guidelines sentence of 121 months
of imprisonment and a lifetime term of supervised release. On appeal, Hatton
argues that his sentence is procedurally and substantively unreasonable.
Generally, an appellate court reviews a district court’s sentencing
decision for reasonableness. Gall v. United States, 552 U.S. 38, 51 (2007).
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-31186 Document: 00512755641 Page: 2 Date Filed: 09/03/2014
No. 13-31186
When a defendant raises an issue on appeal that he did not raise in the district
court, however, review is limited to plain error. See Puckett v. United States,
556 U.S. 129, 134-35 (2009). To show plain error, the defendant must show a
forfeited error that is clear or obvious and that affects his substantial rights.
See id. at 135. If he makes such a showing, this court may exercise its
discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. See id.
Hatton first contends that his sentence is procedurally unreasonable
because the district court improperly presumed that the Guidelines were
mandatory because they were mandated by Congress and improperly
enhanced his sentence. Contrary to Hatton’s contentions, the district court
specifically recognized that the guidelines were advisory, and based on the
unrebutted information contained in Hatton’s presentence report, he has not
shown that the district court plainly erred when it determined that a five-level
enhancement pursuant to U.S.S.G. § 2G2.2(b)(7)(D) based on the number of
images involved in the offense was warranted. See § 2G2.2(b)(7)(D), comment.
(n.4(B)(ii)); United States v. Angulo, 927 F.2d 202, 205 (5th Cir. 1991); see also
United States v. Zuniga, 720 F.3d 587, 591 (5th Cir. 2013).
Next, Hatton contends that his prison and supervised release sentences
are substantively unreasonable. The district court did not err in rejecting
Hatton’s various policy arguments assailing § 2G2.2, including that § 2G2.2
deserves no deference because it lacks empirical support. See United States v.
Miller, 665 F.3d 114, 120-21 (5th Cir. 2011). Also, the record reveals that,
when determining Hatton’s sentences, the district court reviewed, listened to,
and considered Hatton’s arguments and allocution and considered the advisory
sentencing guidelines range, the Sentencing Guidelines, the policy statements
of the Sentencing Guidelines, and the sentencing factors of 18 U.S.C. § 3553(a).
2
Case: 13-31186 Document: 00512755641 Page: 3 Date Filed: 09/03/2014
No. 13-31186
Hatton has not rebutted the presumption that his within guidelines sentences
are reasonable. See United States v. Campos-Maldonado, 531 F.3d 337, 338-
39 (5th Cir. 2008); United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
Accordingly, the judgment of the district court is AFFIRMED.
3