United States v. David Shelton

Case: 13-30900 Document: 00512598196 Page: 1 Date Filed: 04/16/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-30900 April 16, 2014
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DAVID SHELTON,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:12-CR-275-1
Before JOLLY, DeMOSS, and ELROD, Circuit Judges.
PER CURIAM: *
David Shelton appeals from his conviction of possessing child
pornography, for which he received a sentence of 240 months of imprisonment.
He contends that this court should not give a presumption of reasonableness
to a sentence calculated using U.S.S.G. § 2G2.2 because that guideline section
is not based on empirical evidence; he correctly concedes that this argument is
foreclosed by United States v. Miller, 665 F.3d 114 (5th Cir. 2011).
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-30900 Document: 00512598196 Page: 2 Date Filed: 04/16/2014
No. 13-30900
Apart from the argument that there should be no presumption of
reasonableness, Shelton argues that his sentence was substantively
unreasonable because he committed a possession offense, which is less serious
than offenses involving the production, transportation, or distribution of
pornography. He avers that he merely downloaded images, did not share those
images, and did not produce child pornography. He states that he has no
criminal history, that he is a decorated veteran, that he has always been
employed, and that he has a supportive family.
No objection was made to the substantive reasonableness of the sentence
at the sentencing hearing. Our review is for plain error. See United States v.
Peltier, 505 F.3d 389, 390-92 (5th Cir. 2007). Shelton has failed to rebut the
presumption of correctness given to his within-range sentence. See United
States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). The district court found
that Shelton distributed pornography, the record indicated that he was
viewing and possessing pornography contemporaneously with the molestation
of a child, and many of the images and videos Shelton possessed are very
disturbing. Shelton’s arguments as to his military service, his status as a first
offender, his employment service, and his supportive family seek to reweigh
the factors relevant to his sentencing, and we will not engage in reweighing
those factors. See United States v. McElwee, 646 F.3d 328, 344 (5th Cir. 2011).
AFFIRMED.
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