United States v. Mark Slayton , 629 F. App'x 475 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4000
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MARK EDWARD SLAYTON,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:14-cr-00201-CCE-1)
Submitted: September 29, 2015 Decided: October 27, 2015
Before KING, DIAZ, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mark A. Jones, BELL, DAVIS & PITT, PA, Winston-Salem, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Anand P. Ramaswamy, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mark Edward Slayton appeals from his 78-month sentence
imposed pursuant to his guilty plea to accessing child
pornography. On appeal, he contends that his below-Guidelines
sentence was both procedurally and substantively unreasonable.
Specifically, he contends that the district court failed to
consider his individual circumstances, gave too much deference
to the Guidelines range determined by U.S. Sentencing Guidelines
Manual § 2G2.2 (2013), and imposed an impermissibly harsh
sentence. We affirm.
We review the district court’s sentence, “whether inside,
just outside, or significantly outside the Guidelines range,”
under a “deferential abuse-of-discretion standard.” Gall v.
United States, 552 U.S. 38, 41 (2007). In conducting this
review, we first ensure “that the district court committed no
significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the [18 U.S.C.]
§ 3553(a) [2012] factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence.” Id. at 51. “When rendering a sentence, the district
court must make an individualized assessment based on the facts
presented,” applying the “relevant § 3553(a) factors to the
specific circumstances of the case before it.” United States v.
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Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal quotation
marks and emphasis omitted). The court must also “state in open
court the particular reasons supporting its chosen sentence” and
“set forth enough to satisfy” this court that it has “considered
the parties’ arguments and has a reasoned basis for exercising
[its] own legal decisionmaking authority.” Id. (internal
quotation marks omitted).
If the sentence is free from procedural error, we then
review it for substantive reasonableness. Gall, 552 U.S. at 51.
“Substantive reasonableness review entails taking into account
the ‘totality of the circumstances, including the extent of any
variance from the Guidelines range.’” United States v. Pauley,
511 F.3d 468, 473 (4th Cir. 2007) (quoting Gall, 552 U.S. at
51). Even if we would have imposed a different sentence, “this
fact alone is ‘insufficient to justify reversal of the district
court.’” Id. at 474 (quoting Gall, 552 U.S. at 51). We apply a
presumption on appeal that a sentence within or below a properly
calculated Guidelines range is substantively reasonable. United
States v. Louthian, 756 F.3d 295, 306 (4th Cir.), cert. denied,
135 S. Ct. 421 (2014).
Here, the district court properly calculated and considered
the applicable Guidelines range and heard argument from counsel
and allocution from Slayton. In imposing sentence, the court
explicitly considered the majority of the statutory factors,
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including the circumstances of the crime, deterrence and just
punishment. The court was particularly concerned about the
seriousness of the crime and referred to the details in the
presentence report about the content of some videos found on
Slayton’s computer. The court further stated that, while it
heard and considered Slayton’s arguments for a probationary
sentence, the court was of the opinion that none of Slayton’s
circumstances warranted a greater variance than the standard
variance the court imposed for such crimes. * Nonetheless, the
court acknowledged that Slayton’s arguments supported a sentence
at the low end of the variant Guidelines range.
Contrary to Slayton’s arguments, the court considered his
individual circumstances. While the court determined that
Slayton’s circumstances were generally those of most other
defendants charged with the same crime, this determination came
after consideration of Slayton’s specific characteristics.
Moreover, while Slayton argued that the court overweighted the
Guidelines range and failed to consider whether the sentence was
greater than necessary, the court explicitly considered the
sentencing factors and concluded that a variant sentence below
* The district court calculated a downward variance based
upon its conclusion that the USSG § 2G2.2 overweighted the
number of images involved and the use of a computer. The court
stated that its regular practice was to calculate a variance
sentence based on a two-offense-level reduction in such cases.
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the Guidelines range was appropriate. Moreover, the court noted
that the requested probationary sentence was not supported by
the statutory factors. As such, we conclude that the court made
no procedural errors in imposing sentence. See United States v.
Helton, 782 F.3d 148, 154 (4th Cir. 2015) (“To require more
explanation would unnecessarily intrude upon the district
court’s primary and unique role in the sentencing process.”).
Next, Slayton contends that his sentence was substantively
unreasonable because the district court relied too heavily on
the “flawed” child pornography guidelines. Slayton avers that
these particular guidelines lack any empirical basis and almost
always result in a range near the statutory maximum, even for
low level offenders. We have previously rejected similar
arguments and held that courts should “give respectful attention
to Congress’s view that child pornography crimes are serious
offenses deserving serious sanctions.” United States v.
Strieper, 666 F.3d 288, 296 (4th Cir. 2012) (alterations and
internal quotation marks omitted); see also United States v.
Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009)
(recognizing that appellate courts are not required to discard
presumption of reasonableness for sentences based on
non-empirically-grounded Guidelines and applying presumption
accordingly); United States v. McLaughlin, 760 F.3d 699, 707-08
(7th Cir. 2014) (holding that sentencing court could consider
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whether the applicable Guidelines were outdated and
disproportionate but that imposing sentence based on the
Guidelines did not render sentence substantively unreasonable).
Here, the court balanced the statutory factors, particularly the
seriousness of the crime, against Slayton’s lack of a criminal
record, his efforts at therapy and rehabilitation, his
expression of remorse, his support system, and his positive work
history. The court concluded that Slayton’s offense was too
serious to justify a lower sentence. “It would be almost
unprecedented to credit a defendant’s challenge to a sentence as
substantively unreasonable when the district court actually
reduced the term of imprisonment below the recommended
Guidelines range.” Helton, 782 F.3d at 155.
Accordingly, considering the totality of the circumstances,
Slayton has failed to rebut the presumption of reasonableness
applicable to his below-Guidelines sentence and has failed to
show that the district court’s considerable discretion was
abused. Thus, we affirm. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
AFFIRMED
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