United States v. Brantman , 341 F. App'x 38 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 7, 2009
No. 08-10945
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DONALD BRANTMAN, JR.,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:08-CR-108-ALL
Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Donald Brantman, Jr., pleaded guilty to one count
of traveling in interstate commerce to engage in illicit sexual conduct with a
minor (Count 1) and one count of committing an enumerated felony involving a
minor while being a registered sex offender (Count 2). The district court
sentenced Brantman to 168 months of imprisonment on Count 1 and to a
consecutive sentence of 120 months of imprisonment on Count 2. Brantman
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-10945
agrees that his guidelines computation was correct but challenges his sentence
as unreasonable.
Brantman first contends that his sentence is unreasonable because the
Sentencing Commission failed to meet the purposes and sentencing objectives
of 28 U.S.C. § 991(b)(1)(C) and 18 U.S.C. § 3553(a)(2) when it promulgated
U.S.S.G. § 4B1.5 and § 2A3.6. He argues that the fact that the district court is
free to disagree with the Sentencing Guidelines does not cure the problem
because (1) the district courts are nevertheless required to consider the
Guidelines; (2) defendants continue to be classified according to whether their
conduct is in the heartland of similar offenses; (3) it is unclear whether district
courts may develop categorical alternatives when the Guidelines do not reflect
the Sentencing Commission’s purposes and objectives; and (4) we presume a
guidelines sentence is reasonable. He argues that his sentence should not be
presumed reasonable because § 4B1.5 is not empirically based.
Brantman correctly asserts that the application of § 4B1.5 to his prior
New York offense of attempted sodomy with a minor caused his guidelines range
of imprisonment for Count 1 to increase from 70 to 87 months to 168 to 210
months. Because his New York offense mandated that he register as a sex
offender, his offense conduct that violated 18 U.S.C. § 2423(b) also violated 18
U.S.C. § 2260A and ultimately exposed him to the additional mandatory,
consecutive 120 months (10 year) sentence.
Brantman’s concedes that the district court’s sentencing decision was
procedurally sound. We consider the “substantive reasonableness of the
sentence imposed under an abuse-of-discretion standard.” Gall v. United States,
128 S. Ct. 586, 596-97 (2007); accord United States v. Cisneros-Gutierrez, 517
F.3d 751, 764 (5th Cir. 2008). District courts have a duty to consider the
§ 3553(a) factors as well as a duty to determine the applicable guidelines range
correctly. United States v. Mares, 402 F.3d 511, 518-19 (5th Cir. 2005). If, in
the exercise of discretion, the sentencing judge imposes a sentence within a
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No. 08-10945
properly calculated guidelines range, little explanation is required, and we will
infer that the district court considered all of the factors for a fair sentence set
forth in the guidelines. Id. at 519. Additionally, “a sentence within a properly
calculated Guideline range is presumptively reasonable.” United States v.
Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); see also Rita v. United States, 127 S.
Ct. 2456, 2462-63 (2007) (upholding the application of the presumption of
reasonableness to sentences within a properly calculated guidelines range).
District courts may depart from the Guidelines based on policy
considerations, even in routine cases. United States v. Mondragon-Santiago, 564
F.3d 357, 365-66 (5th Cir. 2009) (applying plain error review), petition for cert.
filed (June 24, 2009) (No. 08-11099). District courts have the discretion to
consider “policy decisions behind the Guidelines, including the presence of
absence of empirical data, as part of their § 3553(a) analysis.” Id. at 366.
The Sentencing Commission “has the capacity courts lack to ‘base its
determinations on empirical data and national experience, guided by a
professional staff with appropriate expertise.’” Id. (quoting United States v.
Kimbrough, 128 S. Ct. 558, 574-75 (2007)). Even when the relevant guideline
is not empirically based, however, “by the time an appeals court reviews a
Guidelines sentence, both the Sentencing Commission and the district court
have fulfilled their congressional mandate to consider the § 3553(a) factors and
have arrived at the same conclusion.” Id. Accordingly, we review a district
court’s decision to award a guidelines sentence that is not empirically grounded
under the same deferential standard we use to review guidelines sentences that
are empirically grounded, regardless whether application of the challenged
guideline “dramatically increased” the punishment for the offense based on a
defendant’s criminal history. See United States v. Duarte, 569 F.3d 523, 530-31
(5th Cir. 2009) (reviewing sentence for reasonableness); Mondragon-Santiago,
564 F.3d at 367. Brantman’s disagreement with his sentence on the assertion
that the Sentencing Commission failed to meet its goals and purpose in
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No. 08-10945
promulgating § 4B1.5 is insufficient to rebut the presumption that his within-
guidelines sentence is reasonable.
Brantman contends in his reply brief that, based on his personal
characteristics and the nature of his offense, his correctly calculated guidelines
sentence is greater than necessary to meet the sentencing objectives of
§ 3553(a)(2). Although Brantman did not make this argument in his opening
brief, the government raised this issue in its brief, so we exercise our discretion
to consider it. See United States v. Ramirez, 557 F.3d 200, 203 (5th Cir. 2009).
Brantman describes himself as penniless, lovelorn, and homeless,
describes his teenage victim as lovelorn, and compares himself favorably to
offenders who actually succeed in making sexual contact with their victims and
to offenders who contact depraved parents seeking to abuse their children. The
district court considered the facts of the case and Brantman’s personal
characteristics, agreed that the case was “somewhat unusual,” and selected a
low-end guidelines sentence based on these facts. The district court listed
several factors to support the sentence it chose, including the need to protect
minors from predatory conduct, Brantman’s history of similar conduct, the
extent to which he went to execute the offense, the seriousness of the offense, the
need to promote respect for this area of law and to afford adequate deterrence,
and the need for just punishment.
The totality of the circumstances considered in light of the § 3553(a)
factors supports the sentence that the district court imposed. See Gall, 128 S.
Ct. at 597. Brantman’s argument regarding his characteristics and the nature
of his offense essentially asks us to reweigh the § 3553(a) factors. That we “might
reasonably have concluded that a different sentence was appropriate is
insufficient to justify reversal of the district court.” Id. Brantman has not
shown that his sentence amounts to an abuse of discretion. See id.
AFFIRMED.
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