US v. Stephen Gayer

Filing 920090429

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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