IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-10250

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

NATHAN DEREK MCGINN,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 6:12-CR-37-1

Before DAVIS, BENAVIDES, and PRADO, Circuit Judges.

PER CURIAM:*

Nathan Derek McGinn appeals his 188-month sentence for receiving 

child pornography and aiding and abetting. He asserts that the guidelines 

minimum sentence was substantively unreasonable and that the district court 

abused its discretion by declining to vary below the guidelines range in light of 

the specific circumstances of his case. We generally review the substantive 

reasonableness of a sentence under a deferential abuse of discretion standard. 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

December 31, 2013

Lyle W. Cayce

Clerk

 

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No. 13-10250

Gall v. United States, 552 U.S. 38, 51 (2007). Because McGinn’s sentence was 

within the properly-calculated guidelines range, a presumption of 

reasonableness applies. See United States v. Jenkins, 712 F.3d 209, 214-15

(5th Cir. 2013). We need not decide whether his failure to object to the sentence 

that was imposed results in plain error review, because even under the 

ordinary standard, McGinn has shown no abuse of discretion.

McGinn asserts that U.S.S.G. § 2G2.2 is entitled only to “limited 

deference” because it is “completely divorced from the Sentencing 

Commission’s institutional role” and “bereft of empirical support.” He 

contends that the guideline requires an inflated base offense level and illogical 

enhancements, producing sentences that “are too harsh for the average child 

pornography offender.” Such an argument is foreclosed by our precedent. See 

United States v. Ellis, 720 F.3d 220, 228 (5th Cir.), petition for cert. filed (Aug. 

16, 2013) (No. 13-5918); United States v. Miller, 665 F.3d 114, 119-23 (5th Cir. 

2011), cert. denied, 132 S. Ct. 2773 (2012).

Additionally, McGinn asserts that his sentence was unreasonable 

because he is an “otherwise law abiding citizen[]” who leads a normal life and 

possessed only 100 still images of child pornography and four videos. He 

asserts that applying the severe enhancements under § 2G2.2 resulted in a 

sentence that was too harsh. According to McGinn, he did not purchase or sell 

the images, did not use them to entice minors to engage in sexual acts, and 

merely viewed the images without engaging in “any kind of hands-on offense.”

Although he attempts to minimize his conduct of merely viewing child 

pornography, we noted in Miller that “real children are actually being abused 

and violated when pornographic images are made.” 665 F.3d at 123. McGinn 

asserts what is essentially a policy disagreement with the Guidelines, and the 

district court was within its discretion to reject it. See id. at 122-23.

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No. 13-10250

We defer here to the district court’s determination that a 188-month 

sentence was necessary to meet the sentencing goals of punishment and 

deterrence, as well as the other factors in 18 U.S.C. § 3553(a). See Gall, 552 

U.S. at 51; Miller, 665 F.3d at 119-23. As McGinn fails to rebut the 

presumption of reasonableness, the judgment of the district court is 

AFFIRMED.

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 Case: 13-10250 Document: 00512485679 Page: 3 Date Filed: 12/31/2013