US v. Stephen Gayer

Filing 920090429

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4467 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. STEPHEN MICHAEL GAYER, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. Andre M. Davis, District Judge. (1:07cr-00473-AMD-1) Submitted: April 23, 2009 Decided: April 29, 2009 Before MICHAEL, GREGORY, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. James Wyda, Federal Public Defender, Ebise Bayisa, Staff Attorney, Greenbelt, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Tonya Kelly Kowitz, Assistant United States Attorney, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Stephen Michael Gayer appeals the sentence imposed after he pleaded guilty to two counts of sexually exploiting a minor for the purpose of producing child pornography. the sentence reasonable, we affirm. We review Gayer's sentence under a deferential abuse of discretion standard. 586, 590 (2007). See Gall v. United States, 128 S. Ct. Finding The first step in this review requires the court to ensure that the district court committed no significant procedural error, such as improperly calculating the Guidelines range. cert. United States v. Osborne, 514 F.3d 377, 387 (4th Cir.), denied, 128 S. Ct. 2525 (2008). Other significant procedural errors include "treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] 3553(a) [2006] factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence." S. Ct. at 597. The court then considers the Gall, 128 substantive reasonableness of the sentence, taking into account the totality of the circumstances. within a properly Id. This court presumes that a sentence guideline range is reasonable. calculated United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007). In calculate opportunity the to sentencing, Guidelines argue the district and court give the should first an deem range parties they for whatever 2 sentence appropriate. Cir. 2007). United States v. Pauley, 511 F.3d 468, 473 (4th The court should then consider the 3553(a) factors to determine whether they support the sentence requested by either party. statutory factors Id. and While a district court must consider the explain its sentence, it need not explicitly reference 3553(a) or discuss every factor on the record, particularly when the court imposes a sentence within a properly calculated Guidelines range. 445 F.3d 339, 345 (4th Cir. 2006). Gayer received a 240 month sentence on the first count and a consecutive sixty month sentence on the second count. He United States v. Johnson, contends that his sentence is procedurally unreasonable because the court did not specifically address facts articulated by counsel concerning his age, lack of risk of recidivism, and lack of criminal record. Gayer contends the take that his sentence is substantively general unreasonable and did because not court into overemphasized account Gayer's deterrence individual factors. Here, the district court followed the necessary procedural steps in sentencing Gayer, properly calculating the Guidelines range and considering that recommendation in conjunction with the 3553(a) factors. In light of the facts of this case, and the district court's sufficient articulation 3 of its consideration of the 3553(a) factors, we find the sentence reasonable. We therefore affirm the sentence. oral argument because in the the facts and legal before We dispense with contentions the court are and adequately presented materials argument would not aid the decisional process. AFFIRMED 4

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