United States Court of Appeals

For the Eighth Circuit

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No. 14-3162

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Roger Bates

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Western District of Arkansas - Ft. Smith

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 Submitted: June 8, 2015

Filed: June 18, 2015

[Unpublished] 

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Before GRUENDER, MELLOY, and BENTON, Circuit Judges.

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PER CURIAM. 

Roger Lynn Bates pled guilty to two counts of producing child pornography

in violation of 18 U.S.C. §§ 2251(a) and 2251(e). The district court imposed the

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The Honorable P.K. Holmes III, Chief Judge, United States District Court for

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the Western District of Arkansas.
maximum 720 months’ imprisonment. Bates appeals, claiming his sentence is

substantively unreasonable. Having jurisdiction under 28 U.S.C. § 1291, this court

affirms. 

Bates asserts no procedural error. See United States v. Feemster, 572 F.3d 455,

461 (8th Cir. 2009) (en banc), quoting Gall v. United States, 552 U.S. 38, 51 (2007)

(reviewing court “must first ensure that the district court committed no significant

procedural error. . . .”). This court reviews the substantive reasonableness of the

sentence for an abuse of discretion. See Gall, 552 U.S. at 51. An abuse of discretion

occurs if the district court “(1) fails to consider a relevant factor that should have

received significant weight; (2) gives significant weight to an improper or irrelevant

factor; or (3) considers only the appropriate factors but in weighing those factors

commits a clear error of judgment.” Feemster, 572 F.3d at 461. 

The presentence investigation report (PSR) calculated a total offense level of

49, making life imprisonment the Guidelines range. The PSR explained, however,

that because the statutory maximum (360 months per count) is less than life

imprisonment, the statutory maximum sentence of 720 months becomes the

Guidelines sentence. 

Bates argues that the district court abused its discretion by imposing a 720-

month sentence. He invokes a Seventh Circuit case upholding a below-Guidelines

sentence as within the district court’s discretion to vary “based on a policy

disagreement.” See United States v. Price, 775 F.3d 828, 840 (7thCir. 2014), quoting

Spears v. United States, 555 U.S. 261, 264 (2009). This case neither controls nor is

apposite enough to prove an abuse of discretion here. Because the statutory

maximum(the Guidelines range) may be presumed reasonable, this court defersto the

district court. See United States v. Lazarski, 560 F.3d 731, 733 (8th Cir. 2009)

(stating that when the bottom of the advisory Guidelines sentencing range is above

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the statutory maximum sentence, “the statutory maximum sentence is presumed

reasonable”). 

Bates also asserts a sentencing disparity, claiming perpetrators of more

egregious crimes have received similar sentences, citing United States v. Demeyer,

665 F.3d 1374, 1374-75 (8th Cir. 2012) (per curiam). Bates did not raise this issue

at sentencing, but the district court noted: “The court must also impose a sentence

that avoids unwarranted sentence disparities among defendants with similar records

who have been found guilty ofsimilar conduct.” See United States v. Baughman, 597

Fed. Appx. 899, 899-900 (8th Cir. 2015) (per curiam) (upholding the statutory

maximum 720-month sentence for a two-count conviction of child-pornography

production, rejecting the defendant’s claim that his crime was not as serious as other

child pornography offenses). The district court properly considered and weighed the

§ 3553(a) factors. See United States v. Borromeo, 657 F.3d 754, 757 (8th Cir. 2011)

(“The district court has wide latitude to weigh the § 3553(a) factors in each case and

assign some factors greater weight than others in determining an appropriate

sentence.”). 

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The judgment is affirmed. 

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