### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-30922

UNITED STATES OF AMERICA, Plaintiff–Appellee,
v. JOHN WYSS, also known as Bones, Defendant–Appellant.

Appeal from the United States District Court for the Western District of Louisiana USDC No. 5:10-CR-319-16

Before OWENS and HAYNES, Circuit Judges and LEMELLE, District Judge * PER CURIAM: ** Defendant-Appellant John Wyss appeals his conviction and life s entence for engaging in a c hild e xploi t ation e nterprise in violation of 18 U .S.C. § 2252A(g). Wyss contends h is Sixth Amendment Right of Confrontation was violated by the admission a t trial of certai n I n t e r n e t Protocol a ddress data ("IP") and U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D October 21, 2013 Ly l e W . Cay ce Clerk

* D is trict Jud g e of the Eas tern D is trict of Louis iana, s itting by d es ignation.

* * Purs uant to 5 T H CIR. R

. 47. 5, the court has determ inedthat this op inion s hould not be p ublis hed andis not preced ent excep t und er the lim itedcircum s tances s et f orth in 5 T H CIR. R. 47. 5. 4. Case: 12-30922 Document: 00512415309 Page: 1 Date Filed: 10/21/2013No. 12-30922

testimony about that data f rom a records cust odian from Sprint - Nextel T e l e c o m m u ni c ations' legal compliance department ("Sprint"). 1 He also c o nt e n d s

errone o us admission of opinion testimony from the government's computer forensic expert i nvaded the jury's fact-finding role. Lastly, Wyss challenges his l if e sentence because the s entencing judge prono u n c e d a n u nr e a s o n ab l e s e nt e n c e and impermissibly relied u pon redundant upward adjustments based on age of the children, use of a computer and engaging in a p attern of activity i nvolving exploitations o f a minor. F or the following r e asons, we AFFIRM the conviction and sentence. 2 I. Facts and Proceedings The key issue a t trial was whether Wyss p r operly was i d entified as the person, using the screen name "Bones", who published child pornography onto an internet bulletin board known as "Dreamboard". 3 As a result of search w arrants executed a t D r e amboard's h ost entity, Certified Hosting Solutions, the government s e i zed the hard drives for

1 "An [ IP] ad d res s is a unique 32- bit num eric ad d res s , w ritten as num erals
s ep aratedby p eriod s, id entif ying each s end er or receiver of inf orm ation traveling acros s the Internet. An I P ad d res s has tw o parts : the id entif ier of a p articular netw orkon the Internet ( s ay, the f

irs t 24 bits ) and an id entif ier of the p articular d evice (w hich can be a s erver or a w ork s tation) w ithin that netw ork

. I n es s ence, an IP ad dres s id entif ies a s ingle com p uter.

. . . " Whi t e Buf f a lo V entures, LLC v . U

ni v ersi ty of Texa s a t A usti n , 420 F .3d 366, 369 n. 6 ( 5 th Cir. 2005)

.

2 Wys s was als o found guilty f or violating 18 U

. S. C

. §2251( d) ( 1) &( e) , cons p iracy to advertis e the dis tribution of childp ornograp hy, andviolating 18 U

. S. C. §2252A( a) ( 2) (A) & (b) ( 1) , cons p iracy to d is tribute child p ornograp hy. How ever, the d is trict jud ge v acatedthos e convictions up on oral m otion of the governm ent p rior to s entencing.

3 D ream boardis a highly encryp ted , m em bers

- only, internet bulletin board that p rom otes m em bers to p rod uce, advertis e and share p ornograp hic im ages and vid eos of child s exual abus e, includ ing link s to an ap p roved , pas sw ord p rotected , third

- p arty w ebs ite f or d ow nload ing. 2 Case: 12-30922 Document: 00512415309 Page: 2 Date Filed: 10/21/2013No. 12-30922

Dreamboard's s ervers. Stored IP addresses were obtained f r o m t he servers. With those addresses the go v ernment's computer forensics specialist, James Fottrell, was able to determine the names of Internet S ervice Providers, such as Sprint f or each IP address. Subpoen a e d r e c o rds from Sprint allowed Fottrell and other government investigators to identify John Wyss, at a specified address in Monroe, Wisconsin, with an a ssigned network access i dentifier "JWYSS14" as the person who posted child pornography on Dr e a m b o a r d using the name "Bones". Prior to execution of warrants at the latter address, Wyss's half-sister Teresa D ampier was informed by her live-in friend Jerry Dahlen, a member of the Monroe, Wisconsin police department, that her brother was in trouble again and that federal agents were planning to s e a r ch their r esidence. Dampier relayed that information to Wyss who d enied knowing the reasons for agents' interest in him. Dampier and Dahlen confirmed that Wyss received mail at their residence, but lived i n t he sleeper compartment of his tractor-trailer. Wyss's location was subsequently determined t hrough a c o urt order to Sprint. That order authorized agents to obtain cellular tower l ocation information used by Wyss's cellular telephone to connect to the Internet. Wy s s w a s arrested and a search warrant was executed of his tractortrailer at a border checkpoint north of Laredo, Texas. Among various i t e m s seized during the search of the sleeper compartment and admittedly owned by Wyss, agen t s f

o u n d a Gateway laptop computer with a hard drive that was completely empty, a Sprint cellular telephone, three Sprint aircards that Wyss admitted using to access t he Inte r n e t , a n empty box for a Toshiba laptop computer, a power cord that did not fit the G a teway laptop, a product key for a Toshiba laptop, a nd a DVD with the image of a child, nude from waist up, and

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containing the word "Lolita". After receiving his "Miranda" rights Wyss orally agreed to speak to agents. H e denied involvement with child pornography and membership in an internet b ulletin board. While denying ever using the screen

name Bones, he did admit to visiting other i n terest websites that corresponded with online activities and postings by Bones. Subsequently during a series of jailhouse discussions with h i s cellmate, Wyss admitted t hat he used the name Bones on Dreamboard, d escribing his and other members use of that internet b ulletin board. Wyss further admitted that he destro y e d c e rtain incriminating evidence of child pornography before his arrest due to suspicion that he was under investigation. The cellmate, Michael Biggs, was a Dreamland member who testified against Wyss pursuant to a plea agreement. At the time of providing testimony Biggs had already received a 240 month sentence, the statutory minimum f or engaging in a child e xploitation enterprise. O ver d efense objecti o n s , S p ri nt ' s c u s t o di an of records g ave t estimony to authenticate records of I P addresses, data u s age and customer subscriber information. H e further explained that the records were maintained by Sprint for billing purposes. The government's comp u t er forensics expert Fottrell testifi e d how he l inked the IP addresses a nd data u sed by Bones on Dre a m b o a rd's servers t o the IP addresses and data assigned to Wyss's Sprint account records. In addition to evidentiary objecti o n s made during the trial b ased on foundation a s to the admissibility of Sprint's records and opinion testimony on the ultimate issue o f Bones' identity, Wyss filed an opposition memorandum based on the Confrontation Clause to the government's motion i n limine

. That motion sought apretrial ruling on the admissibility of the Sprint IP addresses

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and data that formed the basis, in part, for the noted o p i n i o n t e stimony. The trial court de f

e r r ed ruling on the motion in limine until trial a nd u ltimately overruled objections at trial. II. Analysis A. Wyss' Confrontation Clause Challenge 1. Standard of Review A Sixth Amendment C onfrontation Clause Challenge is reviewed de novo if made in the district court a nd for plain error if it was n ot challenged in the district court. See United States v. A costa , 47 5 F

. 3 d 6 7 7 , 680 (5 th Cir. 2007). Here, Wyss expressly asserted his Confrontation Clause challenge to the Sprint IP records in a written memorandum in opposition to t he government's motion in limine , as seen above. 4 We will review this issue de novo , w ith any error being subject t o t he harmless error a nalysis. See U nited States v. Cantu-Ramirez , 669 F.3d 619, 631 (5 th Cir. 2012), cert. denied , 132 S.Ct. 2 7 5 9 , 183 L

. Ed 2d 628 (2012). 2. Applicable Law The Confrontation C l a u s e e nsures that an accused has the right to "be confronted with the witnesses against him." U.S. CONST. Amend VI; Crawford

v. Washington , 541 U.S. 3 6 , 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 ( 2004). A violation of the Confrontation Clause occurs upon t he a dmission of " testimonial statements of a witness who d id not appear a t trial unless he was unavailable to testify, and the defendant had a prior opportunity for cross-examination." I d.

4 The governm ent argues that p lain error review s hould ap p ly becaus e Wys s d id not s p ecif ically id entif

y the Conf

rontation Claus e as the bas is f or his trial- court objection. We need not d ecid e this ques tion becaus e Wys s's argum ent f ails even und er the les s d ef erential stand ard of review

. 5 Case: 12-30922 Document: 00512415309 Page: 5 Date Filed: 10/21/2013No. 12-30922

at 5 3-54 ( Emphasis a dded). The relationship between qualification for one of the

s t a n d ar d h e ar s ay e xc e p tions a nd exemption from the Confro nt ati o n r e qu ir e m e nt is n ot a c asual one. M elendez-Diaz v. Massachusetts , 557 U.S. 305, 129 S.Ct. 2527, 2539-2 5 4 0 , 1 7 4 L

. E d

. 2 d 3 1 4 (2009). Hearsay law e xempts business records because businesses have a financial incentive to k eep reliable records. See Fed. Rule Evid. 8 0 3 ( 6)

. Th e Sixth Amendment also g enerally admits business records into evidence, but not b ecause of their reliability under hearsay law. B usiness records are admitted because - having been created for t he administration of an entity's a ffairs a nd not for the purpose of e st a b l i s h i n g or p r oving s ome fact at trial

- t hey are not weaker substitutes for live testimony. Melendez-Diaz , 129 S.Ct. at 2539-2540. The Crawford Court described a testimonial statement as " '[a] sole m n declaration or affirmation made for the purpose o f establishing o r p roving some fact,'" a description which includes "statements that a re made under circumstances w hich would lead an objective witness reasonably to believe that the statement w ould be available for use a t a later trial.'" See Brown v. Epps , 686 F.3d 281, 286-87 (5 th Cir. 2012). T h is Court must determine whether the Sprint records are more a kin t o testimony o r to an o rdinary business record that

was n ot prepared for litigation pur p o ses. See U nited States v. M

a r tinez-Rios , 595 F.3d 581, 585-6 (5 thCir. 2010) . 3. Discussion Wyss asserts that Sprint's IP address records a re t estimonial in nature because they were produced by a representative from Sprint's l egal compliance d e p a r t ment who did not personally retrieve the d a ta, in response to a t r i a l subpoena. Wyss cites i n s upport decisions by the U n ited States Supreme Court

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in Melendez-Diaz v . Massachusetts , su p ra , a nd Bullcoming v. New Mexico ,
___ U.S.

_ __, 1 31 S.Ct. 2705, 180 L .Ed. 2d 610 (2011). U n d er Wyss's theory a document kept in the regular course of business would become inadmissable if the document was later offered at trial in response to court order or subpoena. He posits that viewpoint, in part, u pon the fact t h at t he IP records were produced as e vi dence fo r t r i al by Sprint's legal c ompliance department, a d e p artment that regularly p roduces corporate r e cords in response to le g a l
process o r litigation needs of parties. He claims the testimonial purpose of the records is also s h own b y their continued maintenance for this litigation. Wyss's argument and reliance upon f actually distinguishable legal authorities fail. As stated above, the primary purpose for creation of the Sprint r ecords is still customer billing. Unlike laboratory certificates created f or use at trial to prove cocaine of a certain weight in Melendez-Diaz and a surrogate analyst who did not perform the blood-alcohol tests t o prove blood alcohol content in Bullcoming, Sprint did not create or maintain IP addresses and data within it s c o r p o r a te r ecords for
p urposes of litigation or as evidence of customer usage to exploit children. Rather, the trial record objectively e stablishes the t rue nature a nd intended
purposes for these records. Sprint's records custodian testified t h at the records

were kept to identify customers for billing p urposes. He was cross-examined to test that characteri z a tion. T he fact that they were used in this prosecution neither c hanges their characterization as routine busine s s r e c ords nor their primary purpose in th e r egular administration of S print's business affairs. Lastly, Sprint's designation of s o meone from its legal compli a n c e department

as c ustodian of records does not thereby convert the records into being

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"exclusively generated f or use at trial". U

nited States v. Martinez-Rios , 595 F.3d 581, 586 (5 thCir. 2010) . B. Opinion Testimony Challenge Wyss a sserts violations of Federal Rules o f Evidence 702 and 704 occurred when the district c ourt, over his timely objection, impermissibly allowed the government's computer forensic expert to opine t hat Wyss is the same person who participated on Dreamboard using the name B ones. He f urther argues that the erroneous admission of that testimony gravely affecte d h i s s ub s t a nt i al rights to a fair and impartial t rial. T he prosecution counters t hat there i s no showing of an abuse of discretion because the expert was accepted a s a computer forensic expert, sufficient reliable e vidence of record f ormed the basis for his o pinion, and that it did not embrace Wyss's mental state or condition. We r eview e vi dentiary rulings f or a n abuse of discretion, a nd i n the event

o f e r r o r , we w ill affirm provided the error is harmless. See United S tates v . Valencia , 600 F

. 3 d 3 8 9 , 416-17 (5 th C ir. 2010). While "review of e videntiary rulings is heightened in a c riminal case," United States v. Gutierrez-Farias , 294 F.3d 657, 662 ( 5 th Cir. 2002), to obtain reversal, the appellant "must demonstrate that the district court's ruling caused him s ubstantial prejudice." United States v. Bishop , 264 F.3d 535, 546 (5 thCir. 2001). An expert w itness my t estify at trial i f h is/her "sci entific, testimonial or other specialized knowledge will help the trier of fact to u nderstand t h e evidence

o r to determine a fact i n issue." Fed. R. Evid. 702. Further, an ex p e r t m a y testify "in the form of an opinion or otherwise, if (1) t he testimony is based upon sufficient facts or data; (2) the testimony is a product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to

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the f acts of the c ase." Id. An expert "opinion i s not objectionable just because it embraces a ultimate issue". Fed. R. Evid. 704. An expert in a criminal c ase m ay not, h owever, offer " an opinion about whether the defendant did o r did not have

a mental state o r condition that constitutes an e lement of the crime charged or of a defense. Those matters are for the trier of fact along." I d. In the i nstant case we perceive n o error. Testimony from the go v ernment's computer forensic expert, Fottrell, was based on examination a nd c omparisons of Wyss's Sprint r ecords, I P addresses and data assigned to him on certain dates and times, along with data retrieved from t he Dreamboard servers showing the IP addresses and data that c orrespond to postings by Bones. Without objection during his direct e xamination, the expert e x p lained how he identified the use of Wyss's Sprint internet account to post m e s s a g e s on Dreamboard under the

name of Bones on multiple occasions during relevant periods o f time. Testimony also showed there was only one Dreamboard member using the name Bones as an identifier. Cross e xamination of the expert sought t o shift responsibility for Dreamboard post i n gs away f r om Wyss to the possibility of technical manipulation of his computer by others, including third party access to control his computer, in order to make Dreamboard postings. On re-direct examination,

over d efense objection, and in response to the defense proffered possibilities of technical manipulat i o n, the expert stated he "believed that J ohn Wyss, Sprint customer, is Bones on Dreamboard." A s s tated before, that conclusion was based

on linking up Dreamb o a r d a c tivity with Wyss's Sprint account usage. At that point and upon counsel's request, the district court a dmonished the jury on the

use of expert testimony. Wh i l e t h e instruction was neither the full pattern

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instruction nor a n o bj e cted-to charge on how to treat expert testimony, the ultimate jury instructions given at the e nd of tr i a l gave the c omplete explanation. We discern no substantial harm in the latter regards. Even assuming errors from the opinion testimony, it was harmless error in light of the remaining overwhelming evidence, which w as d i s c u s s e d above. Wyss acknowledges that prior to the opinion given during redirect examination, the expert provided the jury with adequate information t o reasonably dec i d e whet h e r Wyss o p erated under the online screen name "Bones". In additional consideration of all other evidence in t he light more favorable to t h e prosecution and due deference to the jury's verdict, we agree. C. Sentencing Challenge Without benefit of t he sentencing transcript o r d esignated portions thereof, Wyss asks this c ourt to find the life sentence i mposed by t h e d i s t rict court is greater than n e c e ssary to m eet sentencing factors u nder 18 U.S.C. § 3553(a) and i s therefore unreason a b l e. He directs us to portions of t he trial transcript and t he Presentence Report (PSR) to argue against: (1) a fi v e -level upward adjustment for posting 6 0 0 o r m o r e p o r n o gr a p h i c images of children; and (2) redundant upward a djustments based upon ages of the children, the use of

a computer a nd engaging in a pattern of activity involving the exploitation of a minor. The government r esponds that Wyss's failure to designate the transcript of the sentencing hearing as part of the appellate record would allow this court to decline consideration of the sentencing c h alleng e . Alternatively, the government urges r ej e c t i o n of Wyss's sentencing challenge for f ailure to show either plain error i n calculating the sentencing guidelines range or substantive unreasonableness.

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In adopting the fa c t ual representations and guideline r ecommendations contained in the PSR, the Statement of R easons ("SOR") shows the district court made changes in t h e guideline calculations in response to the government's oral motion to vacate t w o o f t he three counts of c o nviction. I nstead of the PSR recommended Total Offense Level 47 that resulted from grouping all three counts of conviction to g e t h e r to produce the highest offense level, the district

c o u r t d e termined Total Offense Level 43 to be t he applicable level for t h e remaining count of conviction, Engaging in a Child Exploitation Enterprise
. United S t ates Sentencing Guidelines ("U.S.S.G.") § 2 G 2

. 6 is the applicable guideline section for the remaining count of conviction under 18 U

. S

. C. § 2252A(g) for Engaging in a Child Exploitation Enterprise. Under this guideline, the b ase offense level is set at 35. There are four Specific Offense C haracteristics which addresses (1) age of the victim, (2) defendant's relationship to or control

over t he victim, (3) if the offense involved aggravated sexual abuse, e.g. use or threatened u s e o f f

o r ce against a m inor, and (4) if a computer or interactive computer serv i c e w a s used in furtherance of the offense. U.S.S.G. § 2.G.2.6 (a)(b)(1)(2)(3)&(4). T he only p rohibition on double counting included in § 2G2.6 pertains to the § 2G2.6(b)(2) enhancement, which is applicable if the offense is committed agai n s t the defendant's child or a child under the care, custody or control o f t he defendant. If that enhancement is applied, the Application Notes expressly prohibit a pplication of the § 3B1.3 enhancement for abuse of a position of trust. U.S.S.G. § 2G2.6, Application Note 2(B). However, that enhancement

was not applied here. For t h e i n s t ant offense and based on the trial evidence, Wyss's base o ffense level 35 was subject t o a 4 level increase because many of his victims had not at t a i n e d t he age of 12 years, plus 2 levels for c omputer usage,

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and another 2 le v e l s f or obstructing justice b y destroying material evidence thro u gh wiping one computer memory drive clean a nd d e stroying another computer. It t husly a ppears t hat the district c o urt's u se of a Total Offense Level 43 resulted from t h e foregoing adjustments to the base o ffense level. 5 The appellate r ecord is devoid of any objections m ad e in the district c ourt to the district court's guideline calculations or to the PSR. "The failure of an appellant to provide a transcript i s a proper ground for dismissal of the appeal." Recover Edge L.P. v . Pentecost , 44 F 3d 1284, 1289 (5 th Cir. 1995) (quoting R ichardson v. Henry , 902 F.2d 41 4, 416 (5 th Cir. 1990) (dismissing appeal based o n sufficiency of the evidence because appellant failed t o include a transcript)). However, the decision to dismiss b ased on lack of a transcript is w ithin ou r d i s c retion. See Coats v. Pierre , 890 F.2d 728, 731 (5 th Cir. 1989) (noting that the Court of Appeals has discretion in f ashioning a response to the failure t o i nclude the transcript on appeal, and t hat dismissing the e ntire appe a l i s a drastic remedy to which we s hould rarely resort). Regardless of Wyss's failure to provide the sentencing transcript, we c an affirm the judgment below, because Wyss fails to establish plain error or substantive unreasonableness for the sentence based on the record before us. A sentence imposed within the Guideline range i s entitlted to a r ebuttable presumption of reasonableness. United States v. Rodriguez , 660 F.3d 231, 233 (5 th Cir. 2011) (citing Gall v. U nited States, 552 U

. S. 38, 51, 128 S.Ct. 586, 169 L.Ed. 2 d 445 ( 2007))); United States v. A lonzo , 435 F.3d 551, 554 (5 th Cir. 2006).

5 Arguabl y , butnotappl ied i n thi s case, U.S.S.G. § 2.G2.6( b) ( 3) woul d al so al l ow a 2 l ev el incr ease f orof f ense conductthatcause ag grav at ed sexual abuse ag ai nstminor s. T he PSR and tri al evi dence est abl i sh thatmanyof Wy ss' s minorvi ct i m s wer e subj ect ed t o sadi st i c and m asochi st i c conduct whi ch he caused m inor s t o pr oduce and whi ch he post ed on the Dr eam board bul let in boar d. 12 Case: 12-30922 Document: 00512415309 Page: 12 Date Filed: 10/21/2013No. 12-30922

"'If the sentencing judge exercises her discretion t o impose a sentence within a properly calculated G uideline range, i n o ur reasonableness review we w ill infer that the judge has considered all the factors for a fair sentence set forth in the Guidelines.'" A lonzo , 4 35 F.3d at 554 ( quoting United States v. Mares , 402 F.3d. 511, 519 (5 th Cir. 2005)); see also U nited States v. Cooks , 589 F.3d 173, 186 (5 th Cir. 2009). Wyss can re b u t t h e presumption "only upon a showing that the sentence does not account for a factor t hat shou l d r e c e ive significant weight, gives significant weight to an irrelevant or improper factor, o r represents a clear

error of judgment in balancing sentence factors." Cooks , 589 F.3d at 186 (citing United States v. Nikonova , 480 F.3d 371, 376 (5 thCir. 2007)). In a case i nvolving a conviction under 18 U.S.C. § 2 244(a)(1) and s entence under § 2A3.4(a) of the guidelines for sexual acts with minors under the age of 12, Wyss correctly notes t hat t h i s court rejected in dicta an age-based enhancement of the base offense w here the age of the victimized child was found already incorporated into the base offen s e l e v e l relevant to that conviction. United States v. John , 309 F.3d 298, 305-306 (5 th Cir. 2002). However, that form of double counting did not o ccur in determining Wyss's base offense level. Wyss's offense of conviction under 18 U.S.C. § 2252A(g) a nd sentence under guideline provision § 2.G2.6 were different statutory and guideline provisions from those addressed in the John opinion. As noted earlier, Wyss's enhancement for age of the victimized children was not factored in t o t h e r elevant base offense level. See U.S.S.G. § 2.G.2.6 (a). Further, there i s no p rohibition to double-counting for age of the victim in § 2.G.2.6(b)(1). With only one non-applicable prohibition discussed earlier, to the extent double-counting may have occurred Wyss fails to show, and we do not find, either a prohibition to double-counting for his offense

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conduct by the a pplicable s entencing guidelines or a n intention by the framers to impose one. As s t a ted by this court i n a related case arising from this same prosecution, " Si n c e computer usage was n ot required by the s tatutes of conviction in this case, see 18 U.S.C. §§ 2 251(d), 2252A(g)(2), D eschenes's computer usage was not already factored into the base o f f ense level in § 2 G 2

. 6 ( a) ." United States v. Deschenes , 2013 WL 829032 ( 5 th Cir. 2013) (unpublished opinion). Similarly, Wyss's argument for application of the dicta found in the John opinion, relative to victim a ge and computer usage enhancements, is rejected. Further, double-counting is prohibited only if the relevant guidelines expressly forbids i t, a nd §§ 2.G.2. 6 (b ) ( 1 ) & 2G2.6(b)(4) contain n o s uch prohibition. See Untied States v. Calbat , 266 F.3d 3 58, 364 (5 th Cir. 2001); Deschenes, supra

. Wyss's a rgument a gainst c onsidering as a factor for sentencing the more than 600 pornographic i mages of children fails in view of record testimony from the computer forensic expert. That testimony linked Wyss with mak i n g 778 postings to Dreamboard, including 144 posts to its video forum known at "PTVids" showing videos of girls 13 a n d y o u n ger as w ell as posts of "web cam" videos of nude girls exposing their genitals and masturbat i n g
. Wyss was required to submit 50 megabytes of child p o rnography to b ecome a member of Dreamboard. Expert testimony explained 50 megabytes was the equivalent of 2,000 and 4,000 still images or 50 minutes of video. One video is the equivalent of 75 images a nd if the video is substantially mo r e than 5 m inutes, the guidelines suggest basis for an upward departure. U.S.S.G. § 2

. G 2

. 2, Application Note 4. F urther, Wyss may also be held a ccountable u nder relevant

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conduct for images p o s t e d by f ellow Dreamboard members where evidence showed m e mbers, including Wyss, a ctively shared child pornographic images with each other. SeeU.S.S.G. § 1B1.3(a)(1)(B). In addressing the substantive reasona b l e n e ss of a sentence, this reviewing court h a s c o n sidered the totality of the circumstances, granting deference to the district court's determination of the a ppropriate sentence based on factors under 18 U.S.C. § 3555(a) . United States v. McElwee , 646 F.3d 328, 337 (5 th Cir. 2 011)
. The SOR shows the guideline changes made by the district court a n d a n e xpress statement therein that the Life sentence was selected as the most reasonable sentence after considering the factors in § 3553(a). Finding no record evidence rebutting represe n t a t i o n s found in the PSR, the government's sentencing memorandum, the SOR or the trial record , t he district court w as entitled to consider the information presented in determining the sentence. See United States v . Parker , 1 33 F .3d 322, 329 (5 th Cir. 1998). The record do e s n ot reflect and Wyss fails to s how t hat the district court failed to take i nto account a factor that should have r e c e ived significant weight, that it gave significant weight to an irre l e v a nt or improper factor, or that i t made a clear error in balancing the § 3 5 5 3 ( a) factors. See United States v. Smith , 440 F.3d 704, 708 ( 5 th C ir. 2006). Wyss fails to rebut the presumption of reasonableness that is accorded this with-in guidelines sentence. See , United States v. Cooks , 589 F.3d 173, 186 (5 th Cir. 2009). The judgment of the district court is AFFIRMED.

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