USA v. Gregory Graffeo, Jr., No. 19-31007 (5th Cir. 2020)
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Case: 19-31007 Document: 00515432293 Page: 1 Date Filed: 05/28/2020 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 19-31007 Summary Calendar May 28, 2020 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff - Appellee v. GREGORY GRAFFEO, JR., Defendant - Appellant Appeal from the United States District Court for the Western District of Louisiana USDC No. 6:19-CR-190-1 Before BARKSDALE, ELROD, and DUNCAN, Circuit Judges. PER CURIAM: * Gregory Graffeo, Jr., pleaded guilty to one count of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B), and was sentenced to, inter alia, a within-Sentencing Guidelines sentence of 63-months’ imprisonment. He challenges the substantive reasonableness of his sentence, asserting: it is greater than necessary to accomplish the goals of the sentencing factors under 18 U.S.C. § 3553(a); and a downward variance was warranted Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. * Case: 19-31007 Document: 00515432293 Page: 2 Date Filed: 05/28/2020 No. 19-31007 because Guideline § 2G2.2 (possessing material involving the sexual exploitation of a minor) is inherently flawed. Although post-Booker, the Guidelines are advisory only, the district court must avoid significant procedural error, such as improperly calculating the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 46, 51 (2007). If no such procedural error exists, a properly preserved objection to an ultimate sentence is reviewed for substantive reasonableness under an abuseof-discretion standard. Id. at 51; United States v. Delgado-Martinez, 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues preserved in district court, its application of the Guidelines is reviewed de novo; its factual findings, only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). As stated, only substantive reasonableness is at issue. In that regard, our court applies a presumption of reasonableness to a within-Guidelines sentence. United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009) (citation omitted). “The presumption is rebutted only upon a showing that the sentence does not account for a factor that should receive significant weight, it gives significant weight to an irrelevant or improper factor, or it represents a clear error of judgment in balancing sentencing factors.” Id. (citation omitted). Graffeo has not rebutted the presumption of reasonableness afforded his within-Guidelines sentence. His disagreement with how the district court weighed the § 3553(a) sentencing factors is insufficient. See, e.g., United States v. Heard, 709 F.3d 413, 434–35 (5th Cir. 2013). Additionally, his assertion a downward variance was necessary because Guideline § 2G2.2 is inherently flawed lacks merit. See United States v. Miller, 665 F.3d 114, 121 (5th Cir. 2011) (noting, when discussing a similar challenge to Guideline § 2G2.2, that our court “will not reject a Guidelines provision as ‘unreasonable’ or ‘irrational’ 2 Case: 19-31007 Document: 00515432293 Page: 3 Date Filed: 05/28/2020 No. 19-31007 simply because it is not based on empirical data and even if it leads to some disparities in sentencing”.). AFFIRMED. 3
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