United States v. Keith James Hubbard , 414 F. App'x 893 ( 2011 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-2968
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United States of America, *
*
Plaintiff - Appellee, * On Appeal from the United
* States District Court for the
v. * District of Minnesota.
*
Keith James Hubbard, * [UNPUBLISHED]
*
Defendant - Appellant. *
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Submitted: March 18, 2011
Filed: March 30, 2011
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Before WOLLMAN, MURPHY, and GRUENDER, Circuit Judges.
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PER CURIAM.
Keith Hubbard pled guilty to one count of distribution of child pornography,
in violation of 18 U.S.C. § 2252(a)(2) and (b)(1). The district court1 sentenced him
within the guideline range to 300 months imprisonment and supervised release for life.
On appeal, Hubbard argues that the district court imposed a substantively
unreasonable sentence.
1
The Honorable James M. Rosenbaum, United States District Judge for the
District of Minnesota, now retired.
We review the substantive reasonableness of a sentence under a deferential
abuse of discretion standard, according a "presumption of substantive reasonableness"
to sentences within the guideline range. United States v. Luleff, 574 F.3d 566, 569
(8th Cir. 2009).
Hubbard argues that the district court gave insufficient weight to the passive
nature of his offense and undue weight to his criminal history. Our review of the
record indicates that the district court thoroughly considered the 18 U.S.C. § 3553(a)
factors and reached a substantively reasonable conclusion. At sentencing, the court
noted that it had reviewed Hubbard's lengthy sentencing memorandum and had
considered his arguments for a downward variance. The court specifically rejected
Hubbard's argument that he had merely passively distributed child pornography. The
court also found that despite receiving significant treatment, Hubbard had continued
to engage in a pattern of sexually exploiting minors. Ultimately, the court decided
that it could not justify a sentence below the guideline range because of the risk
Hubbard posed to the community as a result of his likelihood to recidivate. This was
a permissible exercise of the court's considerable discretion under Gall v. United
States, 552 U.S. 38 (2007), and United States v. Booker, 543 U.S. 220 (2005).
We also reject Hubbard's argument that the court should have afforded less
deference to the sentencing guidelines because those applying to child pornography
cases are not based on sufficient empirical support. See United States v. O'Connor,
567 F.3d 395, 398 (8th Cir. 2009).
Accordingly, the judgment of the district court is affirmed.
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