United States v. Roger Bates ( 2015 )

United States Court of Appeals
For the Eighth Circuit
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No. 14-3162
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Roger Bates
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Arkansas - Ft. Smith
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Submitted: June 8, 2015
Filed: June 18, 2015
[Unpublished]
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Before GRUENDER, MELLOY, and BENTON, Circuit Judges.
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PER CURIAM.
Roger Lynn Bates pled guilty to two counts of producing child pornography
in violation of 18 U.S.C. §§ 2251(a) and 2251(e). The district court1 imposed the
1
The Honorable P.K. Holmes III, Chief Judge, United States District Court for
the Western District of Arkansas.
maximum 720 months’ imprisonment. Bates appeals, claiming his sentence is
substantively unreasonable. Having jurisdiction under 28 U.S.C. § 1291, this court
affirms.
Bates asserts no procedural error. See United States v. Feemster, 572 F.3d 455,
461 (8th Cir. 2009) (en banc), quoting Gall v. United States, 552 U.S. 38, 51 (2007)
(reviewing court “must first ensure that the district court committed no significant
procedural error. . . .”). This court reviews the substantive reasonableness of the
sentence for an abuse of discretion. See Gall, 552 U.S. at 51. An abuse of discretion
occurs if the district court “(1) fails to consider a relevant factor that should have
received significant weight; (2) gives significant weight to an improper or irrelevant
factor; or (3) considers only the appropriate factors but in weighing those factors
commits a clear error of judgment.” Feemster, 572 F.3d at 461.
The presentence investigation report (PSR) calculated a total offense level of
49, making life imprisonment the Guidelines range. The PSR explained, however,
that because the statutory maximum (360 months per count) is less than life
imprisonment, the statutory maximum sentence of 720 months becomes the
Guidelines sentence.
Bates argues that the district court abused its discretion by imposing a 720-
month sentence. He invokes a Seventh Circuit case upholding a below-Guidelines
sentence as within the district court’s discretion to vary “based on a policy
disagreement.” See United States v. Price, 775 F.3d 828, 840 (7th Cir. 2014), quoting
Spears v. United States, 555 U.S. 261, 264 (2009). This case neither controls nor is
apposite enough to prove an abuse of discretion here. Because the statutory
maximum (the Guidelines range) may be presumed reasonable, this court defers to the
district court. See United States v. Lazarski, 560 F.3d 731, 733 (8th Cir. 2009)
(stating that when the bottom of the advisory Guidelines sentencing range is above
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the statutory maximum sentence, “the statutory maximum sentence is presumed
reasonable”).
Bates also asserts a sentencing disparity, claiming perpetrators of more
egregious crimes have received similar sentences, citing United States v. Demeyer,
665 F.3d 1374, 1374-75 (8th Cir. 2012) (per curiam). Bates did not raise this issue
at sentencing, but the district court noted: “The court must also impose a sentence
that avoids unwarranted sentence disparities among defendants with similar records
who have been found guilty of similar conduct.” See United States v. Baughman, 597
Fed. Appx. 899, 899-900 (8th Cir. 2015) (per curiam) (upholding the statutory
maximum 720-month sentence for a two-count conviction of child-pornography
production, rejecting the defendant’s claim that his crime was not as serious as other
child pornography offenses). The district court properly considered and weighed the
§ 3553(a) factors. See United States v. Borromeo, 657 F.3d 754, 757 (8th Cir. 2011)
(“The district court has wide latitude to weigh the § 3553(a) factors in each case and
assign some factors greater weight than others in determining an appropriate
sentence.”).
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The judgment is affirmed.
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