USA v. Rodney Ray

Filing 920100203

Case: 09-60369

Document: 00511019842

Page: 1

Date Filed: 02/03/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
No. 09-60369 Summary Calendar February 3, 2010 Charles R. Fulbruge III Clerk

UNITED STATES OF AMERICA, Plaintiff-Appellee v. RODNEY RAY, Defendant-Appellant

Appeal from the United States District Court for the Northern District of Mississippi USDC No. 2:08-CR-108-1

Before HIGGINBOTHAM, CLEMENT and SOUTHWICK, Circuit Judges. PER CURIAM:* Rodney Ray appeals his sentence following his guilty plea conviction for one count of possession of a computer containing images of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) and 18 U.S.C. § 2256(8)(A). Ray contends that the district court erred by failing to grant him a downward departure, and, as such, that his within-guidelines sentence is unreasonable. Ray specifically argues that the district court should have given minimal weight to the guidelines range because U.S.S.G. § 2G2.2 it is not based on empirical
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR . R. 47.5.4.
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Case: 09-60369

Document: 00511019842 Page: 2 No. 09-60369

Date Filed: 02/03/2010

evidence and results in exponentially high sentences for persons convicted of possessing child pornography. He further argues that the other § 3553(a)

sentencing factors militated in favor of a below-guidelines sentence. In reviewing a sentence, this court should "consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard." Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008). When the district court imposes a sentence within a properly calculated guidelines range and gives proper weight to the Guidelines and the § 3553(a) factors, this court gives "great deference to that sentence and will infer that the judge has considered all the factors for a fair sentence set forth in the Guidelines in light of the sentencing considerations set out in § 3553(a)." United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.) (internal quotation marks and citation omitted), cert. denied, 129 S. Ct. 328 (2008). "A discretionary sentence imposed within a properly calculated guidelines range is presumptively reasonable." CamposMaldonado, 531 F.3d at 338. In this case, the district court considered Ray's argument for a belowguidelines sentence in conjunction with the § 3553(a) sentencing factors and determined that they supported a within-guidelines sentence. The absence of empirical data supporting § 2G2.2 and Ray's disagreement with his withinguidelines sentence are insufficient to rebut the presumption that his sentence is reasonable. Campos-Maldonado, 531 F.3d at 338. Accordingly, the district court did not err by not sentencing Ray to a below-guidelines sentence. AFFIRMED

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