US v. Lindsey Bowling

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:14-cr-00151-1 Copies to all parties and the district court/agency. [999849507].. [15-4636]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4636

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LINDSEY DALE BOWLING,
Defendant - Appellant.

Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber, Senior
District Judge. (1:14-cr-00151-1)

Submitted:

May 13, 2016

Decided:

June 10, 2016

Before KEENAN, DIAZ, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Christian M. Capece, Federal Public Defender, Lex A. Coleman,
Assistant Federal Public Defender, Jonathan D. Byrne, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for
Appellant. Carol A. Casto, Acting United States Attorney,
Larry R. Ellis, Lisa G. Johnston, Assistant United States
Attorneys, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Lindsey

Dale

Bowling

appeals

from

his

97-month,

within-Guidelines sentence imposed pursuant to his guilty plea
to possession of child pornography.

On appeal, he asserts that

his sentence is both procedurally and substantively unreasonable
because

the

Guidelines

district

as

disparities.

court

mandatory,

allegedly

resulting

treated

in

the

Sentencing

unwarranted

sentencing

We affirm.

We review a sentence for reasonableness under a deferential
abuse of discretion standard.

Gall v. United States, 552 U.S.

38, 51 (2007); United States v. Berry, 814 F.3d 192, 194-95 (4th
Cir.

2016).

consider,

In

among

determining

other

procedural

factors,

whether

reasonableness,
the

district

we

court

adequately analyzed the 18 U.S.C. § 3553(a) (2012) factors and
sufficiently explained the selected sentence.
51.

Gall, 552 U.S. at

When a district court has treated the Guidelines range as

mandatory, the sentence is procedurally unreasonable and subject
to vacatur.

See United States v. Mendoza-Mendoza, 597 F.3d 212,

220 (4th Cir. 2010) (remanding when “left only to speculate as
to

whether

the

sentence

.

.

.

was

imposed

as

a

matter

of

obligation or as an exercise of judgment”).
Bowling contends that, by its purported refusal to consider
his

request

Guidelines,

for
the

a

downward

district

variance

court
2

from

essentially

the

Sentencing

treated

the

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Guidelines

as

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mandatory.

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We

disagree.

The

district

court

stated that it was “not bound by” the Guidelines, but would
continue

to

afford

the

child

pornography

Guidelines,

U.S.

Sentencing Guidelines Manual § 2G2.2 (2014), due consideration
until either Congress or the Sentencing Commission changed them.
The

district

court

did

not

state

that

its

discretion

was

limited, or that it wished to impose a different sentence but
was unable to do so.

Rather, the district court considered the

§ 3553(a) factors as well as Bowling’s request for a variance
and, after concluding that this was “one of the most egregious
instances that’s ever come before me as a judge,” determined
that

a

sentence

appropriate. *

at

the

top

of

the

Guidelines

range

was

Accordingly, we conclude that the court’s refusal

to vary was not based upon a misunderstanding as to the advisory
nature of the Guidelines and that the sentence was procedurally
reasonable.
Bowling next asserts that his sentence was substantively
unreasonable

because,

contrary

to

the

district

court’s

statements, Bowling’s case was not one of the most severe child
pornography cases in the Southern District of West Virginia.
*

Given the district court’s conclusion regarding the
seriousness of Bowling’s
conduct, we also reject Bowling’s
argument
that
the
sentence
here
created
a
procedurally
unreasonable disparity in child pornography sentences in the
Southern District of West Virginia.

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“Any

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sentence

Guidelines

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that

range

is

is

within

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or

presumptively

below

a

properly

[substantively]

calculated
reasonable.

Such a presumption can only be rebutted by showing that the
sentence is unreasonable when measured against the 18 U.S.C. §
3553(a) factors.”

United States v. Louthian, 756 F.3d 295, 306

(4th Cir. 2014).

Upon review, we conclude that the within-

Guidelines sentence was not unreasonable when measured against
the

§

3553(a)

factors

and

therefore

was

not

substantively

unreasonable.
Accordingly,

we

affirm

Bowling’s

sentence.

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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