US v. Stephen Gayer, No. 08-4467 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4467 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. STEPHEN MICHAEL GAYER, Defendant -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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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. Finding 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. 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 failing to adequately explain the chosen sentence. S. Ct. at 597. The court then considers the facts, or 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 calculated guideline range is reasonable. United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007). In calculate opportunity sentencing, the to the Guidelines argue district range for and whatever 2 court give the sentence should first parties they an deem appropriate. Cir. United States v. Pauley, 511 F.3d 468, 473 (4th 2007). The court should then consider the § 3553(a) factors to determine whether they support the sentence requested by either party. statutory Id. factors While a district court must consider the and 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. United States v. Johnson, 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 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. substantively general Gayer unreasonable deterrence and contends because did not that the take his court sentence is overemphasized into account followed the Gayer s individual factors. Here, the district court necessary procedural steps in sentencing Gayer, properly calculating the Guidelines range and considering that conjunction with the § 3553(a) factors. recommendation in 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 adequately because presented in the the facts and materials We dispense with legal before contentions the court are and argument would not aid the decisional process. AFFIRMED 4
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