United States v. Nathan McGinn

Case: 13-10250 Document: 00512485679 Page: 1 Date Filed: 12/31/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-10250 December 31, 2013
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
NATHAN DEREK MCGINN,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:12-CR-37-1
Before DAVIS, BENAVIDES, and PRADO, Circuit Judges.
PER CURIAM: *
Nathan Derek McGinn appeals his 188-month sentence for receiving
child pornography and aiding and abetting. He asserts that the guidelines
minimum sentence was substantively unreasonable and that the district court
abused its discretion by declining to vary below the guidelines range in light of
the specific circumstances of his case. We generally review the substantive
reasonableness of a sentence under a deferential abuse of discretion standard.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-10250 Document: 00512485679 Page: 2 Date Filed: 12/31/2013
No. 13-10250
Gall v. United States, 552 U.S. 38, 51 (2007). Because McGinn’s sentence was
within the properly-calculated guidelines range, a presumption of
reasonableness applies. See United States v. Jenkins, 712 F.3d 209, 214-15
(5th Cir. 2013). We need not decide whether his failure to object to the sentence
that was imposed results in plain error review, because even under the
ordinary standard, McGinn has shown no abuse of discretion.
McGinn asserts that U.S.S.G. § 2G2.2 is entitled only to “limited
deference” because it is “completely divorced from the Sentencing
Commission’s institutional role” and “bereft of empirical support.” He
contends that the guideline requires an inflated base offense level and illogical
enhancements, producing sentences that “are too harsh for the average child
pornography offender.” Such an argument is foreclosed by our precedent. See
United States v. Ellis, 720 F.3d 220, 228 (5th Cir.), petition for cert. filed (Aug.
16, 2013) (No. 13-5918); United States v. Miller, 665 F.3d 114, 119-23 (5th Cir.
2011), cert. denied, 132 S. Ct. 2773 (2012).
Additionally, McGinn asserts that his sentence was unreasonable
because he is an “otherwise law abiding citizen[]” who leads a normal life and
possessed only 100 still images of child pornography and four videos. He
asserts that applying the severe enhancements under § 2G2.2 resulted in a
sentence that was too harsh. According to McGinn, he did not purchase or sell
the images, did not use them to entice minors to engage in sexual acts, and
merely viewed the images without engaging in “any kind of hands-on offense.”
Although he attempts to minimize his conduct of merely viewing child
pornography, we noted in Miller that “real children are actually being abused
and violated when pornographic images are made.” 665 F.3d at 123. McGinn
asserts what is essentially a policy disagreement with the Guidelines, and the
district court was within its discretion to reject it. See id. at 122-23.
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Case: 13-10250 Document: 00512485679 Page: 3 Date Filed: 12/31/2013
No. 13-10250
We defer here to the district court’s determination that a 188-month
sentence was necessary to meet the sentencing goals of punishment and
deterrence, as well as the other factors in 18 U.S.C. § 3553(a). See Gall, 552
U.S. at 51; Miller, 665 F.3d at 119-23. As McGinn fails to rebut the
presumption of reasonableness, the judgment of the district court is
AFFIRMED.
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