United States v. Michael Alderman , 669 F. App'x 934 ( 2016 )

FILED
NOT FOR PUBLICATION OCT 31 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-30314
Plaintiff-Appellee, D.C. No. 2:15-cr-00038-JLQ
v.
MEMORANDUM*
MICHAEL JAMES ALDERMAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Justin L. Quackenbush, District Judge, Presiding
Submitted October 25, 2016**
Before: LEAVY, GRABER, and GOULD, Circuit Judges.
Michael James Alderman appeals from the district court’s judgment and
challenges the 228-month sentence imposed following his guilty-plea conviction
for possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Alderman contends that, in light of the allegedly fundamental flaws of
U.S.S.G. § 2G2.2, the district court procedurally erred by considering that
Guideline in arriving at his sentence. The district court did not err. The record
demonstrates that the district court recognized its discretion to vary downward
from the correctly-calculated Guidelines range based on a policy disagreement
with the applicable Guidelines, but declined to do so in this case. See United
States v. Henderson, 649 F.3d 955, 963-64 (9th Cir. 2011) (district courts may vary
from the child pornography Guidelines based on a policy disagreement, but they
must continue to consider the applicable Guidelines as a “starting point” and are
not obligated to vary from the child pornography Guidelines).
Alderman next contends that his sentence is substantively unreasonable.
The district court did not abuse its discretion in imposing Alderman’s sentence.
See Gall v. United States, 552 U.S. 38, 51 (2007). The below-Guidelines sentence
is substantively reasonable in light of the 18 U.S.C. § 3553(a) factors and the
totality of the circumstances, including the nature of the offense and the need to
protect the public. See Gall, 552 U.S. at 51.
AFFIRMED.
2 15-30314