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-Guidelines 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 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

October 17, 2019

Lyle W. Cayce

Clerk

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In contending his sentence is substantively unreasonable, he asserts 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 flawed. Massey also contends 

the court failed to adequately consider his personal circumstances, the specific 

facts of his offense, and the need to avoid unwarranted sentencing disparities. 

Further, he complains the court ignored evidence that the majority of courts 

grant variances in child pornography cases because Guideline § 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, 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 noted, Massey challenges only the substantive reasonableness of his 

sentence; therefore, we review for abuse of discretion. Gall, 552 U.S. at 51.

And, in reviewing a sentence that falls within a properly-calculated Guidelines 

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 shows his sentence “does not 

account for a factor that should receive significant weight, . . . gives significant 

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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 Guideline § 2G2.2 is disproportionately punitive and 

automatically warrants a variance. As Massey concedes, however, our court 

has rejected similar challenges. See United States v. Miller, 665 F.3d 114, 116, 

119, 121 (5th Cir. 2011) (upholding substantive reasonableness of a withinGuidelines 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 the district court considered the Guidelines, the 

parties’ assertions, and, in particular, Massey’s reasoning as to why the court 

should impose a sentence below the Guidelines 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 unwarranted sentencing disparity. Because the sentence 

imposed is within the properly-calculated Guidelines 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 

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the court afforded his mitigating contentions. Massey fails to rebut the 

presumption of reasonableness applicable to his within-Guidelines sentence.

AFFIRMED.

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