United States Court of Appeals

For the Eighth Circuit

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No. 11-3406

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Kenneth P. Luckey

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the Western District of Missouri - Kansas City

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 Submitted: April 20, 2012

 Filed: August 17, 2012

[Unpublished]

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Before MURPHY, MELLOY, and GRUENDER, Circuit Judges.

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PER CURIAM.

Kenneth Luckey pled guilty to two counts of distributing child pornography

over the internet in violation of 18 U.S.C. § 2252(a)(2) and one count of possessing
child pornography in violation of § 2252(a)(4). The district court

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calculated

Luckey’s advisory sentencing guidelines range at 151 to 188 months’ imprisonment

and sentenced Luckey to 180 months. Luckey now appeals the sentence, and we

affirm.

Luckey’s convictions came after an eight-year-old girl informed her mother

that, while she was spending the night with Luckey’s daughter at Luckey’s house,

Luckey showed her pictures on his computer of naked people and, on a prior

occasion, showed her pornographic pictures and exposed his genitals to her. Law

enforcement officers then executed a search warrant at Luckey’s residence and

discovered child pornography. A detective interviewedLuckey, and Luckeyadmitted

to possessing and sharing child pornography as well as chatting online with minors

for illicit sexual purposes.

Luckey challenges his sentence, arguing that the district court procedurally

erred in the sentencing proceedings and that the sentence imposed is substantively

unreasonable. “We first review for significant procedural error and then for

substantive reasonableness.” United States v. Johnson, 572 F.3d 449, 454 (8th Cir.

2009).

Luckey argues that the district court committed procedural error by neglecting

to provide an adequate basis for the sentence it imposed and by failing to

acknowledge that a sentence must be “sufficient, but not greater than necessary,” to

satisfy the purposes stated in 18 U.S.C. § 3553(a)(2). “In reviewing a sentence for

procedural error, we review the district court’s factual findings for clear error and its

application of the guidelines de novo.” United States v. Frausto, 636 F.3d 992, 995

(8th Cir. 2011) (quoting United States v. Barker, 556 F.3d 682, 689 (8th Cir. 2009)). 

The Honorable David Gregory Kays, United States District Judge for the

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Western District of Missouri.

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Procedural error includes “failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory, failing to consider the

§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to

adequately explain the chosen sentence . . . .” Gall v. United States, 552 U.S. 38, 51

(2007). A “district court is presumed to know the law in regard to sentencing and

need not recite each factor to be upheld.” United States v. Keating, 579 F.3d 891, 892

(8th Cir. 2009). Here, the district court referenced § 3553(a) and explicitly analyzed

the facts of the case with respect to many of the § 3553(a) factors. For example,

regarding the nature and circumstances of the offense, the district court noted that,

unlike cases where people simply view child pornography, Luckey engaged in sexual

conversations with minors and that this case had “all the earmarks of a child being

groomed for the type of vile, horrible conduct” depicted in the pornographic images

Luckey possessed. Furthermore, Luckey’s argument that the district court failed to

recognize that a sentence must be “sufficient, but not greater than necessary” is

contradicted by the district court’s statement that it had struggled with whether or not

to give an above-guidelines sentence but determined that “the guidelines adequately

approach a sentence that is sufficient but not greater than necessary to comply with

the purposes set forth within the statute.” Thus, Luckey’s arguments lack merit. 

Luckey also argues that the sentence is substantively unreasonable. “We will

not reverse a sentence as substantively unreasonable absent a showing of abuse of

discretion by the district court.” Frausto, 636 F.3d at 996 (quoting United States v.

San-Miguel, 634 F.3d 471, 475 (8th Cir. 2011)). “We may find an abuse of discretion

where the sentencing court ‘fails to consider a relevant factor that should have

received significant weight, gives significant weight to an improper or irrelevant

factor, or considers only the appropriate factors but commits a clear error of judgment

in weighing those factors.’” United States v. Moore, 565 F.3d 435, 438 (8th Cir.

2009) (quoting United States v. Kowal, 527 F.3d 741, 749 (8th Cir. 2008)). “We have

been clear that our review of the substantive reasonableness of sentences is narrow

and deferential; ‘it will be the unusual case when we reverse a district court

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sentence—whether within, above, or below the applicable Guidelines range—as

substantively unreasonable.’” United States v. Osei, 679 F.3d 742, 747 (8th Cir.

2012) (quoting United States v. Feemster, 572 F.3d 455, 464 (8th Cir. 2009) (en

banc)). A sentence within the properly-calculated guidelines range is presumptively

reasonable on appeal. Frausto, 636 F.3d at 997. 

Luckey specifically asserts that the sentence is substantively unreasonable in

that the district court failed to give sufficient weight to the unreasonableness of the

guidelines range, his lack of any prior criminal history, his significant support from

the community, his compliance with the terms of his pretrial release, his history of

employment, and his history of depression. Luckey made these arguments in his

sentencing memorandum, which the district court indicated it had read, or orally at

the sentencing hearing. We therefore presume that the district court considered these

arguments and concluded that they did not call for a sentence lower than the one

imposed. See United States v. Wilcox, 666 F.3d 1154, 1157 (8th Cir. 2012). “The

district court’s decision to place greater emphasis in this case on factors that favored

a sentence within the advisory range . . . than on other § 3553(a) factors that might

favor a more lenient sentence is a permissible exercise of the considerable discretion

available to a sentencing court . . . .” United States v. Ruelas-Mendez, 556 F.3d 655,

658 (8th Cir. 2009). We conclude that the district court did not abuse its considerable

discretion in weighing the § 3553(a) factors and in arriving at Luckey’s sentence. See

United States v. Gasaway, 684 F.3d 804, 808 (8th Cir. 2012). 

For the foregoing reasons, we affirm the judgment of the district court.

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