United States v. Mark Althage

Filing

PER CURIAM OPINION FILED - THE COURT: JAMES B. LOKEN, STEVEN M. COLLOTON and BOBBY E. SHEPHERD (UNPUBLISHED) [3940242] [11-2900]

United States Court of Appeals
For the Eighth Circuit
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No. 11-2900
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Mark Douglas Althage
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: April 16, 2012
Filed: August 8, 2012
[Unpublished]
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Before LOKEN, COLLOTON, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Following a bench trial, Mark Althage was convicted of possession of child
pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). Because Althage’s
advisory guideline range of 135-168 months’ imprisonment exceeded the statutory

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maximum penalty of 120 months, the district court1 determined that 120 months was
the advisory guideline sentence. See USSG § 5G1.1(a). The court then varied
downward, sentencing Althage to 96 months’ imprisonment and eight years of
supervised release. On appeal, Althage challenges the substantive reasonableness of
his sentence. We review for abuse of discretion. See Gall v. United States, 552 U.S.
38, 51 (2007).
Althage complains that USSG § 2G2.2, which governs possessing material
involving the sexual exploitation of a minor, is the product of congressional mandate
rather than the Sentencing Commission’s reliance on national experience and
empirical data. He argues that the sentence imposed in this case was unreasonable,
because the district court used the advisory guideline range as an “anchor” from
which to vary downward. Because Althage views § 2G2.2 as arbitrary and irrational,
he appears to suggest that a district court errs by giving any weight to the advisory
range, even if the court imposes a sentence below that range.
This court has rejected the premise of Althage’s position. We presume that a
sentence within the advisory range is reasonable, United States v. Barron, 557 F.3d
866, 870 (8th Cir. 2009); see Rita v. United States, 551 U.S. 338, 347 (2007), and that
presumption applies even when a guideline results from congressional directive. See
United States v. Werlein, 664 F.3d 1143, 1146 (8th Cir. 2011) (per curiam); United
States v. Kiderlen, 569 F.3d 358, 369 (8th Cir. 2009). The presumption of
reasonableness approved in Rita recognized “the real-world circumstance that when
the judge’s discretionary decision accords with the Commission's view of the
appropriate application of § 3553(a) in the mine run of cases, it is probable that the
sentence is reasonable.” 551 U.S. at 350-51. This court has said that “in the realworld circumstance where a sentencing judge agrees with Congress, then the resulting

1

The Honorable Catherine D. Perry, Chief Judge, United States District
Court for the Eastern District of Missouri.
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sentence is also probably within the range of reasonableness.” Kiderlen, 569 F.3d at
369. We also have concluded that when a district court imposes a sentence below the
presumptively reasonable guideline range, then it is “nearly inconceivable” for such
a sentence to be unreasonably long. United States v. Lazarski, 560 F.3d 731, 733 (8th
Cir. 2009). Therefore, that the district court may have considered the sentencing
range established by the guidelines for possession of child pornography, as directed
by § 3553(a)(4), before varying downward to a term of imprisonment below the
advisory range, does not establish an abuse of discretion.
The judgment of the district court is affirmed.
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