US v. William Geister, No. 11-4540 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4540 UNITED STATES OF AMERICA, Plaintiff Appellee, v. WILLIAM GEISTER, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Jerome B. Friedman, Senior District Judge. (2:10-cr-00127-JBF-TEM-1) Submitted: November 10, 2011 Decided: November 22, 2011 Before MOTZ, GREGORY, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Michael S. Nachmanoff, Federal Public Defender, Keith L. Kimball, Assistant Federal Public Defender, Caroline S. Platt, Appellate Attorney, Norfolk, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Elizabeth M. Yusi, Assistant United States Attorney, Norfolk, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: William Geister pled guilty without a plea agreement to one count engaging in of possession sexually of visual explicit depictions conduct, in of minors violation 18 U.S.C.A. §§ 2252(a)(4)(B), 2256(2) (West Supp. 2011). district court eighty-seven Sentencing Geister calculated to 108 months Guidelines to challenges 102 his Geister s Manual months Guidelines imprisonment ( USSG ) arguing under the (2010) and On appeal, imprisonment. sentence, range that it is of The at U.S. sentenced Geister substantively unreasonable because it results from the application of USSG § 2G2.2--a Guideline which he asserts is fundamentally flawed because it lacks an empirical basis--and is necessary to achieve the purposes of sentencing. greater than We affirm. We review the sentence imposed by the district court for reasonableness under an abuse-of-discretion Gall v. United States, 552 U.S. 38, 41, 51 (2007). entails appellate substantive consideration reasonableness of a of both the sentence. standard. This review procedural Id. at 51. and A sentence imposed within the properly calculated Guidelines range is presumed reasonable by this court. United States Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010). v. Such a presumption is rebutted only by showing that the sentence is unreasonable when measured against 2 the [18 U.S.C.] § 3553(a) [(2006)] factors. United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks omitted). It is well-established that a district court may consider policy-based objections to the Sentencing Guidelines. Kimbrough v. United States, 552 U.S. 85, 91, 109-10 (2007); see also United States v. Herder, 594 F.3d 352, 362-63 (4th Cir.) (vacating sentence where district court refused to consider a variation from the Guidelines in light of the 67:1 ratio between [cocaine base] and powder cocaine at Herder s offense level because the court found that Congress has decided that that s an appropriate ratio to establish ), cert. denied, 130 S. Ct. 3440 (2010). Here, the district court acknowledged Geister s arguments sentencing at for a downward variance from the Guidelines range to sixty months imprisonment based in part on the proposition that USSG § 2G2.2 lacked empirical support, but it ultimately rejected those arguments and declined to impose a downward district variance. court To should the extent have Geister adopted his is suggesting policy the arguments, Kimbrough does not require that appellate courts discard the presumption Guidelines. 366 (5th for sentences based on non-empirically-grounded United States v. Mondragon-Santiago, 564 F.3d 357, Cir. 2009); see also United States 620 F.3d 901, 901 (8th Cir. 2010) (per curiam). v. Talamantes, While district courts certainly may disagree with the Guidelines for policy 3 reasons and may adjust a sentence accordingly[,] . . . if they do not, [appellate courts] will not second-guess their decisions under a more Guideline lenient [at standard issue] simply is because not the particular empirically-based. Mondragon-Santiago, 564 F.3d at 367. Geister also asserts that a sentence of 102 months imprisonment is greater than necessary to achieve the purposes of sentencing. Geister s argument, in essence, asks this court to substitute its judgment for that of the district court. Even if this court may have weighed the § 3553(a) factors differently if we had resolved the issue in the first instance, we will defer to the See United district States ( [D]istrict v. courts determining the factors. ), cert. court s Jeffery, have weight to denied, 631 well-reasoned F.3d 669, extremely broad be each given ___ S. Ct. ___, decision. 679 (4th Cir.) discretion when of the 2011 § 3553(a) WL 4532052 (Oct. 3, 2011). Geister s arguments on appeal fail to rebut the presumption that his within-Guidelines sentence is substantively reasonable. judgment. legal Accordingly, we affirm the district court s We dispense with oral argument because the facts and contentions are adequately 4 presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 5

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