IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-20150

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

DEBRA JEAN EYERLY, also known as Debra Martin-Pryce

Defendant -Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:11-CR-809-1

Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Debra Jean Eyerly challenges the sentences imposed as a result of her

guilty-plea convictions for conspiring to produce child pornography, aiding and 

abetting its production, and its transportation and possession. Although the 

applicable advisory Guidelines-sentencing range was limited to the statutory 

maximum of 1,800 months’ imprisonment, which Eyerly does not dispute, the 

district court sentenced her below that range to 300 months. 

* 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

May 5, 2014

Lyle W. Cayce

Clerk

 

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No. 13-20150

Post-Booker, the Sentencing Guidelines are advisory only, and a properly 

preserved objection to an ultimate sentence is reviewed for reasonableness 

under an abuse-of-discretion standard; nevertheless, the district court must 

still properly calculate the Guidelines-sentencing range for use in deciding on 

the sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). 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). Eyerly claims 

procedural error and maintains her sentence is substantively unreasonable.

For the claimed procedural error, Eyerly asserts the court imposed

improperly a four-level increase pursuant to Guideline § 2G2.1(b)(2)(B)

(enhancement for offense involving commission of a sexual act). This claim 

need not be considered because removing the adjustment would not affect the 

applicable sentencing range; therefore, the error, if any, would be harmless. 

See, e.g., United States v. Chon, 713 F.3d 812, 822 n.7 (5th Cir.), cert. denied, 

134 S. Ct. 255 (2013). 

Regarding the claimed substantively-unreasonable sentence, Eyerly

asserts that, in considering the 18 U.S.C. § 3553(a) factors, the court did not 

adequately account for, inter alia, her history of sexual abuse and alcoholism. 

When sentencing a defendant, the district court must consider, inter alia, the 

nature and circumstances of the offense; defendant’s history and 

characteristics; the seriousness of the offense; and the need to promote respect 

for the law, provide just punishment, afford adequate deterrence, and protect 

the public. 18 U.S.C. § 3553(a). The substantive reasonableness of a sentence 

is determined “by considering the totality of the circumstances, granting 

deference to the district court’s determination of the appropriate sentence 

based on the § 3553(a) factors”. United States v. McElwee, 646 F.3d 328, 337 

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No. 13-20150

(5th Cir. 2011) (citation and internal quotation marks omitted). For obvious 

reasons, “the sentencing judge is in a superior position to find facts and judge 

their import under § 3553(a) with respect to a particular defendant”. United 

States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008) (citation 

omitted). 

The record reflects the court listened to, and adequately considered,

Eyerly’s contentions regarding a lesser sentence, but found the 300-month 

sentence appropriate. See United States v. Rodriguez, 523 F.3d 519, 525–26

(5th Cir. 2008). We find no reason to disturb the court’s exercise of discretion. 

See, e.g., Campos-Maldonado, 531 F.3d at 339. 

AFFIRMED. 

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 Case: 13-20150 Document: 00512617980 Page: 3 Date Filed: 05/05/2014