United States v. Kenneth Luckey , 485 F. App'x 159 ( 2012 )


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  •                  United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 11-3406
    ___________________________
    United States of America
    lllllllllllllllllllll Plaintiff - Appellee
    v.
    Kenneth P. Luckey
    lllllllllllllllllllll Defendant - Appellant
    ____________
    Appeal from United States District Court
    for the Western District of Missouri - Kansas City
    ____________
    Submitted: April 20, 2012
    Filed: August 17, 2012
    [Unpublished]
    ____________
    Before MURPHY, MELLOY, and GRUENDER, Circuit Judges.
    ____________
    PER CURIAM.
    Kenneth Luckey pled guilty to two counts of distributing child pornography
    over the internet in violation of 18 U.S.C. § 2252(a)(2) and one count of possessing
    child pornography in violation of § 2252(a)(4). The district court1 calculated
    Luckey’s advisory sentencing guidelines range at 151 to 188 months’ imprisonment
    and sentenced Luckey to 180 months. Luckey now appeals the sentence, and we
    affirm.
    Luckey’s convictions came after an eight-year-old girl informed her mother
    that, while she was spending the night with Luckey’s daughter at Luckey’s house,
    Luckey showed her pictures on his computer of naked people and, on a prior
    occasion, showed her pornographic pictures and exposed his genitals to her. Law
    enforcement officers then executed a search warrant at Luckey’s residence and
    discovered child pornography. A detective interviewed Luckey, and Luckey admitted
    to possessing and sharing child pornography as well as chatting online with minors
    for illicit sexual purposes.
    Luckey challenges his sentence, arguing that the district court procedurally
    erred in the sentencing proceedings and that the sentence imposed is substantively
    unreasonable. “We first review for significant procedural error and then for
    substantive reasonableness.” United States v. Johnson, 
    572 F.3d 449
    , 454 (8th Cir.
    2009).
    Luckey argues that the district court committed procedural error by neglecting
    to provide an adequate basis for the sentence it imposed and by failing to
    acknowledge that a sentence must be “sufficient, but not greater than necessary,” to
    satisfy the purposes stated in 18 U.S.C. § 3553(a)(2). “In reviewing a sentence for
    procedural error, we review the district court’s factual findings for clear error and its
    application of the guidelines de novo.” United States v. Frausto, 
    636 F.3d 992
    , 995
    (8th Cir. 2011) (quoting United States v. Barker, 
    556 F.3d 682
    , 689 (8th Cir. 2009)).
    1
    The Honorable David Gregory Kays, United States District Judge for the
    Western District of Missouri.
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    Procedural error includes “failing to calculate (or improperly calculating) the
    Guidelines range, treating the Guidelines as mandatory, failing to consider the
    § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to
    adequately explain the chosen sentence . . . .” Gall v. United States, 
    552 U.S. 38
    , 51
    (2007). A “district court is presumed to know the law in regard to sentencing and
    need not recite each factor to be upheld.” United States v. Keating, 
    579 F.3d 891
    , 892
    (8th Cir. 2009). Here, the district court referenced § 3553(a) and explicitly analyzed
    the facts of the case with respect to many of the § 3553(a) factors. For example,
    regarding the nature and circumstances of the offense, the district court noted that,
    unlike cases where people simply view child pornography, Luckey engaged in sexual
    conversations with minors and that this case had “all the earmarks of a child being
    groomed for the type of vile, horrible conduct” depicted in the pornographic images
    Luckey possessed. Furthermore, Luckey’s argument that the district court failed to
    recognize that a sentence must be “sufficient, but not greater than necessary” is
    contradicted by the district court’s statement that it had struggled with whether or not
    to give an above-guidelines sentence but determined that “the guidelines adequately
    approach a sentence that is sufficient but not greater than necessary to comply with
    the purposes set forth within the statute.” Thus, Luckey’s arguments lack merit.
    Luckey also argues that the sentence is substantively unreasonable. “We will
    not reverse a sentence as substantively unreasonable absent a showing of abuse of
    discretion by the district court.” 
    Frausto, 636 F.3d at 996
    (quoting United States v.
    San-Miguel, 
    634 F.3d 471
    , 475 (8th Cir. 2011)). “We may find an abuse of discretion
    where the sentencing court ‘fails to consider a relevant factor that should have
    received significant weight, gives significant weight to an improper or irrelevant
    factor, or considers only the appropriate factors but commits a clear error of judgment
    in weighing those factors.’” United States v. Moore, 
    565 F.3d 435
    , 438 (8th Cir.
    2009) (quoting United States v. Kowal, 
    527 F.3d 741
    , 749 (8th Cir. 2008)). “We have
    been clear that our review of the substantive reasonableness of sentences is narrow
    and deferential; ‘it will be the unusual case when we reverse a district court
    -3-
    sentence—whether within, above, or below the applicable Guidelines range—as
    substantively unreasonable.’” United States v. Osei, 
    679 F.3d 742
    , 747 (8th Cir.
    2012) (quoting United States v. Feemster, 
    572 F.3d 455
    , 464 (8th Cir. 2009) (en
    banc)). A sentence within the properly-calculated guidelines range is presumptively
    reasonable on appeal. 
    Frausto, 636 F.3d at 997
    .
    Luckey specifically asserts that the sentence is substantively unreasonable in
    that the district court failed to give sufficient weight to the unreasonableness of the
    guidelines range, his lack of any prior criminal history, his significant support from
    the community, his compliance with the terms of his pretrial release, his history of
    employment, and his history of depression. Luckey made these arguments in his
    sentencing memorandum, which the district court indicated it had read, or orally at
    the sentencing hearing. We therefore presume that the district court considered these
    arguments and concluded that they did not call for a sentence lower than the one
    imposed. See United States v. Wilcox, 
    666 F.3d 1154
    , 1157 (8th Cir. 2012). “The
    district court’s decision to place greater emphasis in this case on factors that favored
    a sentence within the advisory range . . . than on other § 3553(a) factors that might
    favor a more lenient sentence is a permissible exercise of the considerable discretion
    available to a sentencing court . . . .” United States v. Ruelas-Mendez, 
    556 F.3d 655
    ,
    658 (8th Cir. 2009). We conclude that the district court did not abuse its considerable
    discretion in weighing the § 3553(a) factors and in arriving at Luckey’s sentence. See
    United States v. Gasaway, 
    684 F.3d 804
    , 808 (8th Cir. 2012).
    For the foregoing reasons, we affirm the judgment of the district court.
    ______________________________
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