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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-30487

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

ANTHONY DARTEZ

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 2:07-CR-20009-1

Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Anthony Dartez pled guilty to possessing child pornography transported

in interstate commerce. See 18 U.S.C. § 2252A(a)(5)(B). The district court

sentenced Dartez to 120 months of imprisonment, which was the statutory

maximum term and above the range advised by the United States Sentencing

Guidelines. On appeal, he contends that his sentence was unreasonable because

the district court gave too much weight to Sentencing Guideline factors favoring

punishment and not enough weight to the factors counseling mitigation of the

United States Court of Appeals

Fifth Circuit

F I L E D

April 2, 2009

Charles R. Fulbruge III

Clerk
No. 08-30487

2

sentence. He also contends that the district court improperly weighed his

disputing the number of pornographic images that he was charged with

possessing. He asserts that the district court mistakenly believed that he was

attempting to minimize the seriousness of his crime.

When the issue is properly preserved for appeal, we examine whether the

sentence resulted from an abuse of the trial court’s discretion. Rita v. United

States, 127 S. Ct. 2456, 2465 (2007). This review for reasonableness is a twopart process. United States v. Rowan, 530 F.3d 379, 381 (5th Cir. 2008). The

appellate court first ensures that the district court did not commit a significant

procedural error. Id. If the sentence is procedurally sound, the appellate court

then considers its “substantive reasonableness.” Id.

The Government contends these review standards do not apply because

Dartez did not make a contemporaneous objection to the sentence imposed. If

that is so, our review would be for plain error. It is not necessary to determine

the sufficiency of Dartez’s objection at his sentencing hearing because he has

failed to show that his sentence is infirm even under an abuse of discretion

standard.

Dartez’s first argument is that the district court’s determination about the

number of images was the type of clearly erroneous fact-finding that amounts

to procedural error. See Gall v. United States, 128 S. Ct. 586, 597 (2008).

However, Dartez offered no evidence in rebuttal to the Government’s witness.

There is thus nothing to show that the district court’s factual finding was

erroneous. See United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.

2008). 

Nevertheless, Dartez also argues that his persistence in his objection to

the number of images itself became a factor that the district court improperly

considered when imposing sentence. A non-Guidelines sentence may be found

unreasonable if, among other reasons, it assigns too much weight to an improper

factor. United States v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007), cert. denied,
No. 08-30487

3

128 S. Ct. 2959 (2008). Dartez claims that he got a harsher sentence in part

because his counsel’s dispute about the number of images was found to be an

irritating quibble. However, nothing in the record supports that the court chose

Dartez’s sentence because of a dispute being made about the number of images.

The actual reasons articulated by the sentencing judge for the sentence

included that Dartez’s materials were graphic and featured young children. In

the district court’s view, Dartez’s act of collecting the pornography meant that

he encouraged the kind of abuse that was depicted. The court labeled Dartez’s

actions as sexual exploitation and abuse of children. Also considered was

Dartez’s history of being sexually abused as a child. One stated purpose for the

sentence was to make professional treatment available to assist his overcoming

what the court labeled as sexual dysfunction. 

The district court summarized its analysis by stating that an upward

departure from the Guidelines range was warranted in light of Dartez’s

characteristics, the circumstances involving his crime, and his refusal to

recognize the full import of his actions. Dartez fails to demonstrate that the

district court committed procedural error. 

Dartez also fails to demonstrate that his sentence was not substantively

reasonable. A “sentencing court may . . . conclude in a particular case that a

sentence within the Guidelines range is not lengthy enough to serve the

objectives of sentencing.” United States v. Williams, 517 F.3d 801, 809 (5th Cir.

2008). That is what the district court did in Dartez’s case. Even if an 87-month

sentence would have been reasonable, as Dartez suggests, that is an insufficient

reason for not deferring to the district court’s decision to impose the sentence

that it selected. See Gall, 128 S. Ct. at 597.

Dartez’s motion to have his counsel relieved and new counsel appointed

is DISMISSED as moot. We AFFIRM.