### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 19

- 40059 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v. JARRED W. MASSEY , Defendant

- Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 3:18

- CR

- 5

- 1

Before BARKSDALE, ELROD, and DUNCAN, Circuit Judges. PER CURIAM: * Jarred W. Massey challenges his within

- G uideline s sentence of, inter alia , 210

- months’ imprisonment , imposed following his guilty

- plea conviction for distributing, possessing, and receiving child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2)(B) and 2252A(a)(5)(B) . His request in district court for a downward variance was denied.

* Pursuant to 5 th Cir. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 th Cir. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED October 17, 2019

Lyle W. Cayce Clerk Case: 19-40059 Document: 00515161923 Page: 1 Date Filed: 10/17/2019No. 19

- 40059

2 In contending his sentence is substantively unreasonable, he assert s the district court erred in balancing the 18 U.S.C. § 3553(a) sentencing factors, by giving undue, significant weight to Sentencing Guideline § 2G2.2 (providing base

- offense levels and enhancements for those convicted of certain offenses involving child pornography) , which he claims is flawe d. Massey also contends the court failed to adequately consider his personal circumstances, the specific facts o f his offense, and the need to avoid unwarranted sentencing disparities. F urther , he complains the court ignored evidence that the majority of courts grant variances in child pornography cases because G uideline § 2G2.2 results in disproportionately severe sentences compared to other, more violent crimes. 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, 4 6, 51 (2007). If no such procedural error exists, a properly preserved objection to an ultimate sentence is reviewed for substantive reasonableness under an abuse

of

- 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 , 51 7 F.3d 751, 764 (5th Cir. 2008)

. As noted, Massey challenges only the substantive reasonableness of his sentence ; therefore, we review for abuse of discretion

. Gall , 552 U.S. at 51

. A n d, in reviewing a sentence that falls within a properly

- calculated G uidelines sentencing range, as in this appeal, our court applies a presumption of reasonableness

. United States v. Alonzo , 435 F.3d 551, 554 (5th Cir. 2006). Massey may rebut the presumption only if he show s his sentence “does not account for a factor that should receive significant weight,

. . . gives significant Case: 19-40059 Document: 00515161923 Page: 2 Date Filed: 10/17/2019No. 19

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3 weight to an irrelevant or improper factor, or

. . . represents a clear error of judgment in balancing sentencing factors”

. United States v. Cooks , 589 F.3d 173, 186 (5th Cir. 2009) (citation omitted)

. The majority of Massey’s appellate brief is devoted to a policy

- based contention that G uideline § 2G2.2 is disproportionately punitive and automatically warrants a variance. A s Massey concedes, however, our court has rejected similar challenges

. See Uni ted States v. Miller , 665 F.3d 114, 116, 119, 121 (5th Cir. 2011) ( upholding substantive reasonableness of a within

Guidelines sentence for transportation of child pornography conviction and stating: “the Guidelines remain the Guidelines. It is for the commission to alter or amend them” . (citation omitted) )

. The record establishes th e district court considered the Guidelines, the parties’ a ssertions , and, in particular, Massey’s reasoning as to why the court should impose a sentence below the G uideli nes sentencing range , but concluded that, based on all of the sentencing factors, a sentence at the low end of the advisory Guidelines range was appropriate. Massey’s assertion the court failed to give adequate weight to mitigating factors, including his remorse, his family support, and his post

- offense psychiatric rehabilitation, is refuted by the record. Massey contends the court failed to adequately consider that his sentence creates an unwa rra nted sentencing disparity . B ecause the sentence imposed is within the properly

- calculated G uidelines sentencing range, “avoiding unwarranted general sentencing disparities is not a factor that we grant significant weight . . . ”

. United States v. Diaz , 637 F.3d 592, 604 (5th Cir. 2011) (citation omitted)

. Massey’ s contention the district court erred in balancing the 18 U.S.C. § 3553(a) sentencing factors amounts to a mere disagreement with the weight Case: 19-40059 Document: 00515161923 Page: 3 Date Filed: 10/17/2019No. 19

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4 the court afforded his mitigating contentions

. Massey fail s to rebut the presumption of reasonableness applicable to his within

- G uidelines sentence. AFFIRMED. Case: 19-40059 Document: 00515161923 Page: 4 Date Filed: 10/17/2019