United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 14, 2017 Decided July 17, 2018

No. 16-3126

UNITED STATES OF AMERICA,

APPELLEE

v.

MICHAEL MATTEA,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:16-cr-00093-1)

Mary E. Davis, appointed by the court, argued the cause 

for appellant. With her on the briefs was Thomas Abbenante, 

appointed by the court.

David P. Saybolt, Assistant U.S. Attorney, argued the 

cause for appellee. With him on the brief were Channing D. 

Phillips, U.S. Attorney, and Elizabeth Trosman, Elizabeth H. 

Danello, and Lindsay Suttenberg, Assistant U.S. Attorneys.

Before: GRIFFITH, MILLETT, and PILLARD, Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.
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GRIFFITH, Circuit Judge: Michael Mattea pleaded guilty to 

the distribution of child pornography and agreed to an 

estimated sentencing range of 151 to 188 months in prison

under the U.S. Sentencing Guidelines (“Guidelines”). The 

district court sentenced Mattea to 151 months’ incarceration.

Mattea appeals, arguing that the district court abused its 

discretion by miscalculating the Guidelines range through 

application of an inappropriate enhancement and by refusing to 

impose a sentence below the Guidelines range. We reject 

Mattea’s arguments and affirm the district court’s sentence.

I

In February 2016, Mattea emailed someone he believed 

was the parent of a ten-year-old girl, but who turned out to be

an undercover officer from the Federal Bureau of Investigation. 

Mattea told the officer he had a sexual interest in children and 

wanted to meet and sexually abuse the officer’s purported

daughter. Then, in March, Mattea sent the officer several 

sexually explicit images of a prepubescent girl who appeared 

to be between eleven and twelve years old. 

Officers shortly thereafter arrested Mattea at his home in 

West Virginia. Investigators seized Mattea’s cell phone, 

computers, and other electronic devices. All told, lawenforcement officials found 187 videos and 116 images 

depicting child pornography, including videos depicting sexual 

acts with infants and toddlers.

In October 2016, Mattea pleaded guilty to distribution of 

child pornography in violation of 18 U.S.C. § 2252(a)(2). As 

part of his plea agreement, Mattea acknowledged that, under 

the Guidelines, his violation of § 2252(a)(2) set his “base 

offense level” at twenty-two (the highest level being fortythree). Mattea also agreed to the application of several
3

enhancements that would increase his offense level and his 

estimated range of punishment. Specifically, Mattea received 

enhancements because his child-pornography offense 

concerned material involving a prepubescent minor or minor 

under twelve, U.S.S.G. § 2G2.2(b)(2); distribution of 

contraband, id. § 2G2.2(b)(3)(F); portrayal of sadistic or 

masochistic conduct, id. § 2G2.2(b)(4); use of a computer, id.

§ 2G2.2(b)(6); and 600 or more images of child pornography, 

id. § 2G2.2(b)(7)(D). In his plea agreement, Mattea expressly 

reserved the right to challenge the application of the computeruse enhancement at his sentencing hearing. These 

enhancements collectively added fifteen levels to Mattea’s 

base offense level.

Mattea’s range was also adjusted three levels downward

based on Mattea’s demonstrated acceptance of responsibility 

and his cooperation with authorities. After applying each of 

these enhancements and downward adjustments, Mattea’s total 

offense level yielded an estimated Guidelines range of 151 to 

188 months’ incarceration. Mattea agreed that any sentence 

within that range would be reasonable.

The district court ultimately sentenced Mattea to 151 

months’ imprisonment, followed by 240 months of supervised 

release. Mattea now appeals his sentence.

II

The district court had jurisdiction to impose Mattea’s 

sentence pursuant to 18 U.S.C. § 3231. We have jurisdiction 

over Mattea’s appeal pursuant to 18 U.S.C. § 3742(a) and 28 

U.S.C. § 1291. 

The government argues that Mattea waived the right to 

appeal his sentence in his plea agreement. Mattea responds that 
4

his appeal waiver should not be enforced because the district 

court mischaracterized the waiver in a colloquy with Mattea 

during his plea hearing. See United States v. Godoy, 706 F.3d 

493, 494-96 (D.C. Cir. 2013). Because the validity of an appeal

waiver does not go to our jurisdiction, we need not address the 

question if we reject Mattea’s challenge on the merits, which, 

as explained below, we do. See United States v. Shemirani, 802 

F.3d 1, 3 (D.C. Cir. 2015).

III

Appellate review of sentencing decisions “is limited to 

determining whether they are ‘reasonable.’” Gall v. United 

States, 552 U.S. 38, 46 (2007). We follow a two-step procedure 

for assessing a sentence’s reasonableness. 

First, we “ensure that the district court committed no 

significant procedural error,” such as “improperly calculating[] 

the Guidelines range,” “failing to consider the [appropriate]

factors,” or “failing to adequately explain the chosen sentence.” 

Id. at 51. 

Second, if the sentencing court’s decision is procedurally 

sound, we consider the “substantive reasonableness” of the 

sentence. Id. Our review for substantive reasonableness is 

“quite deferential,” United States v. Knight, 824 F.3d 1105, 

1111 (D.C. Cir. 2016), and it will be an “unusual case when 

[we] can plausibly say that a sentence is so unreasonably high 

or low” as to warrant reversal, United States v. Gardellini, 545 

F.3d 1089, 1093 (D.C. Cir. 2008). Moreover, a “sentence 

within a properly calculated Guidelines range is entitled to a 

rebuttable presumption of reasonableness.” United States v. 

Law, 806 F.3d 1103, 1106 (D.C. Cir. 2015) (quoting United 

States v. Dorcely, 454 F.3d 366, 376 (D.C. Cir. 2006)).
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We review claims of procedural error and substantive 

unreasonableness for abuse of discretion. Gall, 552 U.S. at 51; 

see also United States v. Wilson, 605 F.3d 985, 1034 (D.C. Cir. 

2010). 

IV

A

Mattea argues that in its calculation of his Guidelines 

range, the district court erred when it applied the two-level 

increase for a child-pornography offense involving the use of a 

computer. See U.S.S.G. § 2G2.2(b)(6). Mattea does not dispute 

that he used a computer to possess and distribute pornographic 

images. Instead, Mattea relies on a February 2013 report issued 

by the U.S. Sentencing Commission, the independent agency 

tasked with developing and updating the Guidelines, to point

out that “given today’s technology, every offense of possessing 

or distributing child pornography involves a computer.” Mattea 

Br. 19; see also U.S. Sent’g Comm’n, Report to the Congress: 

Federal Child Pornography Offenses 323-24 (2012) 

(explaining that the computer-use enhancement “applies in 

virtually every case”). Due to the ubiquity of computers, 

Mattea contends that the computer-use enhancement, first 

established in 1996, now “fail[s] to differentiate among 

offenders in terms of their culpability.” U.S. Sent’g Comm’n, 

supra, at iii.

Since the Supreme Court’s decision in United States v. 

Booker, 543 U.S. 220 (2005), the Guidelines serve only an 

advisory function. Id. at 245. Nevertheless, even in a postBooker world in which the Guidelines are not binding, the 

sentencing court “must calculate and consider the applicable 

Guidelines range” as its starting point. Dorcely, 454 F.3d at
6

375. And Booker did not change “how the Guidelines range is 

to be calculated.” Id. at 375 n.6.

The district court adequately considered Mattea’s 

argument and acted within its sound discretion to reject it. The 

computer-use enhancement is written in mandatory language: 

“If the offense involved the use of a computer . . . for the 

possession, transmission, receipt, or distribution of the 

material, . . . increase by 2 levels.” U.S.S.G. § 2G2.2(b)(6). As 

the district court aptly noted, “The law as it currently exists 

makes that enhancement an enhancement for that [childpornography] offense.” Responding to defense counsel’s 

concerns, the district court recognized that the enhancement

could act as a “double hit” given its application in almost every

present-day child-pornography offense under § 2252(a)(2). 

Even so, the district court also explained that its role in 

calculating the Guidelines range was not that of a “policy

maker.” Instead, the district court was limited to “apply[ing] 

the Guidelines as currently constructed and the enhancements 

as currently styled.” According to the district court, this 

enhancement’s near-universal application in childpornography cases presented policy issues that Congress itself 

would have to address.

Even so, the district court suggested that though Mattea 

could not use his policy-based argument in a challenge to how 

his sentencing range was calculated, “certainly” he could use 

the argument “to . . . seek a variance downward from an

existing Guidelines Range[].” Mattea’s counsel acknowledged 

that he could pursue the variance argument and did so later in 

the hearing. The record thus confirms that the district court

“considered” Mattea’s argument against applying the 

enhancement and offered a “reasoned basis” for rejecting it. 

United States v. Lafayette, 585 F.3d 435, 440 (D.C. Cir. 2009)

(quoting Rita v. United States, 551 U.S. 338, 356 (2007)). The 
7

district court recognized both the limitations that the 

Guidelines placed on the court when calculating Mattea’s range

and the discretion it retained to vary from that correctly 

calculated range. 

Whatever the merits of Mattea’s policy dispute with the 

Guidelines’ computer-use enhancement, the district court did 

not abuse its discretion by applying it here. We recently 

addressed a similar situation in United States v. Fry, 851 F.3d 

1329 (D.C. Cir. 2017), involving a defendant likewise 

sentenced for a child-pornography offense. The defendant in 

Fry argued that the sentencing court should have granted him 

a downward variance from the Guidelines range based solely

on a policy disagreement with the Guidelines. In particular, the 

defendant maintained that a downward variance was required

because many of his sentence’s enhancements—including use 

of a computer—“applied in the vast majority of cases.” Id. at 

1333. We rejected that argument because “a district court does 

not necessarily abuse its discretion by agreeing with (and 

applying) [the child-pornography] Guidelines.” Id. at 1334.

Of course, Mattea’s case is not exactly like Fry. Mattea 

challenges the calculation of his Guidelines range based on a 

policy disagreement with the Guidelines. Fry only involved a 

policy-based challenge to the district court’s decision not to 

grant a downward variance; the defendant in Fry did not 

challenge the district court’s decision to apply the relevant 

enhancements when calculating his Guidelines range. 

Despite this difference, the principle in Fry still controls here:

A district court generally does not abuse its discretion by 

applying the Guidelines to the facts before it. If anything, 

Mattea’s challenge is even less forceful than the one in Fry

because the district court’s discretion is greater when 

considering downward variances than when calculating the 

correct Guidelines range. Cf. United States v. Ballestas, 795 
8

F.3d 138, 150 (D.C. Cir. 2015) (stating that sentencing courts 

enjoy “substantial discretion . . . following calculation of the 

guidelines range”); United States v. Haipe, 769 F.3d 1189, 

1191 (D.C. Cir. 2014) (explaining that a “properly calculated 

range frames the district court’s exercise of its discretion”). 

The district court did not abuse its discretion when 

applying the computer-use enhancement. We therefore affirm 

that aspect of Mattea’s sentence. 

B

Mattea also argues that the district court abused its 

discretion by refusing Mattea’s request for a downward 

variance from the calculated Guidelines range. We address in 

turn the procedural and substantive elements of this challenge.

Mattea claims the district court procedurally erred by 

failing to adequately consider “the need to avoid unwarranted 

sentence disparities among defendants with similar records 

who have been found guilty of similar conduct.” 18 U.S.C. 

§ 3553(a)(6). Mattea argued before the district court that a 

substantial variance down to sixty months’ incarceration (the 

statutory mandatory minimum) was justified after considering 

the sentencing practices of other district court judges. For 

instance, Mattea noted that in 2015 only 30.7% of those 

convicted of federal child-pornography offenses nationwide 

received a sentence within the Guidelines range, and 67.5% of 

those convicted were sentenced below the range. Mattea even 

presented a series of cases from our circuit in which judges 

imposed sentences well below the calculated Guidelines range 

for what Mattea considers to be similar conduct.

In assessing Mattea’s procedural challenge, we must bear 

in mind that 
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the § 3553(a) factors that district courts must consider at 

sentencing are vague, open-ended, and conflicting; 

different district courts may have distinct sentencing 

philosophies and may emphasize and weigh the individual 

§ 3553(a) factors differently; and every sentencing 

decision involves its own set of facts and circumstances 

regarding the offense and the offender.

Gardellini, 545 F.3d at 1093.

Section 3553(a)(6) requires courts to consider avoiding 

unwarranted disparities among defendants “with similar 

records who have been found guilty of similar conduct.” It 

“does not require the district court to avoid sentencing 

disparities between []defendants who might not be similarly 

situated.” United States v. Guillermo Balleza, 613 F.3d 432, 

435 (5th Cir. 2010). 

Here, the district court adequately considered the need to 

avoid unwarranted disparities and did not abuse its discretion 

when concluding that Mattea was differently situated from

defendants for whom other district court judges granted 

downward variances. The district court recognized that 

avoiding unwarranted disparities is “one of the factors” it 

needed to consider, and emphasized that Mattea’s crime did not 

constitute “a typical case” of child pornography. The district 

court sufficiently explained how the distinctly troubling

features of Mattea’s child-pornography offense warranted 

Mattea’s sentence. 

As the government explained in its sentencing 

memorandum, Mattea’s collection of child pornography was 

“particularly disturbing” because he had images of toddler and 

infant abuse. J.A. 133; see also J.A. 126 & n.4 (listing in 
10

graphic detail some “particularly egregious” pieces of Mattea’s 

child-pornography collection). The district court agreed, 

concluding that Mattea’s collection of child pornography was 

“extraordinary and outrageous and terrible and particularly 

heinous,” necessitating sufficient punishment to deter others 

“who might engage in conduct like this, who may engage in 

collecting the type of pornography and the amount of 

pornography that [Mattea] obtained.” Also, because Mattea 

had sought to meet and sexually abuse a minor, the district 

court explained that a within-Guidelines sentence would better

deter people from trying to arrange the type of meeting Mattea 

sought.

The district court did not procedurally err when invoking 

the particular characteristics of Mattea’s offense to justify his

sentence. When an offense is uniquely serious, courts will 

consider the need to impose “stiffer sentences” that “justif[y] 

the risk of potential disparities.” United States v. Jones, 846 

F.3d 366, 372 (D.C. Cir. 2017); see also United States v. 

Accardi, 669 F.3d 340, 346 (D.C. Cir. 2012) (concluding that

a within-Guidelines sentence for a child-pornography offense 

did not produce an unwarranted disparity when the images 

distributed by the defendant “were much more aggressive and 

troubling than the images distributed by other offenders” who 

received lesser sentences). The district court considered the 

aspects of Mattea’s crime that justified the disparity between 

his within-Guidelines sentence and the below-Guidelines 

sentences in this circuit. This was not procedural error.

Mattea nevertheless contends that the district court’s 

consideration of unwarranted disparities was defective because

the court’s analysis was infected by an irrelevant factor. When 

the defense introduced the recent cases in which district court 

judges in this circuit had granted downward variances for 

child-pornography offenses, the district court discounted most 
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of those precedents as the products of “judges who were 

appointed by President Obama in the last three or four years, 

and who have very limited experience in sentencing in these 

cases.”

Mattea argues that these comments demonstrate that the 

district court made its sentencing determination on the basis of

political beliefs. We disagree. To be sure, district courts should 

avoid creating even an appearance of impropriety by making

comments that could be taken to be partisan. But as we read the 

district court’s statements, they concerned recent judicial 

appointees’ relative lack of sentencing experience, not politics. 

To the extent that the district court’s perception of its additional 

experience affected its judgment, this only reinforced the 

court’s confidence in the need to impose a punishment “that’s 

consistent with the seriousness of [Mattea’s] conduct” and 

would “protect[] the public” through adequate deterrence. 

These reasons for imposing a within-Guidelines sentence—

rooted in Mattea’s conduct and the need for public safety—are 

not the products of politics. Moreover, throughout its 

discussion of judicial experience, the district court was 

centrally focused on the substantive differences between the 

cases cited by the defense counsel and Mattea’s present 

offense. The challenged statements do not detract from the

district court’s reasoned consideration of Mattea’s arguments 

for a downward variance.

Finally, Mattea argues that even if the district court 

adequately considered the unwarranted-disparities factor, its 

sentence of 151 months’ incarceration was nonetheless 

substantively unreasonable. This is an unpersuasive challenge,

especially given that Mattea himself conceded in his plea 

agreement that any within-Guidelines sentence would be 

“reasonable.”
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Because Mattea’s sentence falls within the Guidelines 

range, we presume it is reasonable. See Law, 806 F.3d at 1106. 

Taking into account “the totality of the circumstances,” Gall, 

552 U.S. at 51, we conclude that Mattea has not rebutted that 

presumption. We “cannot say that the [district] court acted 

unreasonably” when concluding that the egregious character of 

Mattea’s offense necessitated a more severe sentence. Jones, 

846 F.3d at 372. Instead, we “defer to the district court’s 

judgment when,” as here, “it has presented a ‘reasoned and

reasonable decision that the § 3553(a) factors, on the whole, 

justified the sentence.’” United States v. Ventura, 650 F.3d 746, 

751 (D.C. Cir. 2011) (quoting Gall, 552 U.S. at 59-60). Given 

the district court’s extensive consideration of the statutory 

factors and the reasoned explanation of its decision, the court 

did not abuse its discretion by imposing a sentence at the 

bottom of the Guidelines range. See Fry, 851 F.3d at 1333-34 

(affirming as substantively reasonable a within-Guidelines 

sentence for a child-pornography offender based on the 

seriousness of the conduct and the need for adequate 

deterrence).

V

For the foregoing reasons, we affirm the sentence imposed 

by the district court.

So ordered.