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w . v i l l a no v a . e du/thir dc ir c uit_2012/963NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 11

- 3992

___________ UNITED STATES OF AMERICA

v. JOHN GREENE ,

Appellant

On Appeal from the United States District Court for the Middle District of Pennsylvania (D. C. No. 3

- 10

- cr - 00041

- 001) District Judge: Honorable Richard P. Conaboy

Submitted Under Third Circuit LAR 34.1(a)

on April 24, 2012

Before: SLOVITER a nd ROTH, Circuit Judges and POLLAK*, District Judge ( Opinion f

ile d : May 21, 2012 )

*Honorable Judge Louis H. Pollak, Senior Judge of the United States District Court of the Eastern District of Pennsylvania sat by designation. Judge Polla k died on May 8, 2012; this opinion is filed by a quorum of the court pursuant to 28 U.S.C. § 46 and Third Circuit IOP 12.1(b).2 O P I N I O N

ROTH, Circuit Judge : John Greene appeals the District C ourt’s October 19, 2011, judgment of senten ce. Greene argues that his sentence is substantively unreasonable because the District Court abused its discretion by according undue weight to the child pornography Sentencing Guidelines and by refusing to gra nt a downward variance based on his medical c ondition. For the following reasons , we will affi rm the sentence imposed by the District C ourt. I. Background Following an investiga tion into child pornography, the F ederal Bureau of Investigation established that Greene had purchased access to child po rnography websites. On February 8, 2010 , agents executed a search warrant at Greene ’s residence
and seized computer

- related materials which included videos and over 2,400 images of child pornography. Greene admitted that he stored child pornography imag es which he purchased online.
On February 16, 2010, Green e was indicted on one count of receiving child pornography in viola tion of 18 U.S.C. §2252(a)(2). On January 31, 2011, pursuant to a plea agreement, Green e pled guilty to the charge. In the Pre

- Sentence Report (PSR), t he probation officer calculated a total offense level of 35 and criminal history category of I, resulting in an advisory Guidelines range of 168 to 210 months. Both Greene and the government conceded that the advisory range3

was pr operly calculated. Greene submitted a memorandum requesting a downward departure from the applicable Guidelines pursuant to U

. S

. S

. G

. § 5H1.4 and a variation from the Guidelines pursuant to 18 U

. S

. C

. § 3553(a) based on his age and medical infirmities which include achondroplastic dwarfism, severe osteoporosis of both legs, chronic pain, hypertension and depression.
At the sentencing hearing on October 18 , 2011, the District Court denied Green e’s motion on the basis that a dow nward departure or variance w ould rarely be based on age and medical conditions, especially in cases where, as here, the defendant suffered from the illness while he committed the illicit acts. After considering the factors set forth in
U.S.C . § 3553(a), the District Court sentenced Greene to 168 months in prison , a life term of supervised release and participation in a sex offender treatment program. The court explained that it had considered Greene’s age and physical infirmity in imposing the

se ntence at the lower end of the Guidel ines range . Greene appealed.
II. Jurisdiction and Standard of Review The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
We review the substantive reasonableness of a sentence for abuse o f discretion and will affirm “unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the District Court provided. ” United
States v

. Tomko , 562 F.3d 558, 568 (3d Cir. 200 9 ) (en banc).4

III. Discussion Green e does not challenge the p rocedural reasonable ness of the sentence but
argues that it is substantively unreasonable because the District Court gave undue weight to the child pornography Sentencing Guidelines and failed to g rant a downward variance
based on his medical condition s . First, Green e contends that the child pornography Guidelines under U.S.S.G. §
2G2.2 merit minimal deference because they are not supported by empirical data, or nationwide experience

. 1 See United States v. Grober , 6 24 F.3d 592 , 608 (3d Cir. 2010). We emphasized that our decision in Grober concerning § 2G2.2 does not require that district courts “ will always recommend an unreasonable sentence, and district courts must, of course, continue to consi der the applicable Guidelines range.” Id. at 609. Thus, our holding in Grober recognized that district courts have the discretion to consider variances based on the view that the Guidelines are flawed but district courts are not required to do so. Here, the District Court properly calculated the sentencing range, treated the range as advisory , and extensively consid ered the factors under § 3553(a) in imposing the sentence. Second, Greene argues that the District Court ab used its discretion by failing t o reasonably apply the § 3553(a) factors to Green e’s particular circumstances and by only cursorily stating that the Bureau of Prisons and Government would be able to manage his

1 The government argues that plain error review is applic able because Greene failed to raise this argument before the District Court. We affirm even under the abuse of discretion standard, so we assume without deciding that Greene’s claim that he raised the issue before the District Court is true.5

medical conditions. Contrary to Green e’s claims, t he District Court noted that it had carefully considered the memoranda submitted by both parties as well as counsel’s

a rguments and explained at length the § 3553(a) factors that justified a sentence of 168 months. Because Green e suffered from his medical conditions while repea tedly engaging
in criminal conduct , the District Court rejected the arguments that his medical condition s warranted a downward variance but took them into account when imposing a sentence at the lower end of the sentencing range

. Considering all the relev ant factors, including
Green e’s past criminal record which involved abuse of children and the need to p rotect the public, the District Court properly imposed the sentence for 168 months. We conclude that the sentence imposed by the District Court was wel l within its discretion and decline to find the sentence substantively unreasonable.
IV. Conclusion For the foregoing reasons, we will affirm the judgment of sentence entered by the District Court.