2015 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of A

ppe al s for the Thir d C ir c uit

7-14-2015 

# U S A v . E a r l C r a y t on

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w . v i l l a no v a . e du/thir dc ir c uit_2015

Thi s J uly i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of A

ppe al s for the Thir d C ir c uit a t V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 2015 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a U niv e r sit y S choo l of L a w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w . v i l l a no v a . e du

. R e c omme nde d C it a t ion

" U SA v . Ea rl C r a y t on " (2015). 2015 D e cisio n s . P a pe r 732. h tt p://d i g it alc ommon s .l a

w . v i l l a no v a . e du/thir dc ir c uit_2015/732NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________ No. 14

- 3115

____________ UNITED STATES OF AMERICA

v. EARL J. CRAYTON,

Appellant

____________ On Appeal from United Stat es District Court for the Western District of Pennsylvania (W

. D

. Pa. No. 2

- 12

- cr - 00138

- 001) District Judge: Honorable Cathy Bissoon

____________ Submitted Pursuant to Third Circuit LAR 34.1(a)

April 28, 2015 Before: FISHER, HA RDIMAN and ROTH , Circuit J udges

. (Filed: July 14, 2015 )

____________ OPINION *

____________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.2

FISHER, Circuit Judge

. Earl J. Crayton appeals his final judgment of sentence, arguing that the District Court committed procedural error by failing to meaningfully consider arguments he made in fa vor of a reduced sentence. We will affirm.
I.
W e write principally for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts that are necessary to our analysi s. On September 23 , 2013, Crayton pled guilty to a charge of possession of material depicting the sexual exploitation of a minor, in violation of 18 U.S.C. § 2252(a)(4)(B). Before sentencing, the Probation Office issued a Presentence Investigation Report (“PSR”) , which calc ulated Crayton’s total offense level as 28 with a criminal history category I, yielding an advisory Guidelines range of 78 to 97 months ’ imprisonment. Rather than objecting to the Probation Office’s Guidelines calculation, Crayton instead argued for a down ward variance for several policy

- based reasons. Of most relevance to this appeal, Crayton challenged the application of three enhancements to his Guidelines calculations: (1) a two

- level enhancement for use of a computer under U.S.S.G. § 2G2.2(b)(6), (2) a five

- level enhancement because the offense involved 600 or more images under U.S.S.G. § 2G2.2(b)(7)(D), and (3) a four

- level enhancement because the offense involved materials that portrayed sadistic or masochistic conduct or other3

depictions of violence under U.S.S.G. § 2G2.2(b)(4). Crayton argued that these enhancements either applied in every child pornography case and resulted in double counting or otherwise lacked empirical support because they did not reasonably approximate the seriousness of the off ense. Crayton also sought a non - incarceration sentence by referencing instances where courts in the Western District of Pennsylvania and across the country had imposed non

incarceration sentences or otherwise varied substantially downward in child pornogr aphy

cases. Given these other cases, Crayton contended that a downward variance was necessary to avoid unwarranted sentence disparities under 18 U.S.C. § 3553(a)(6). At sentencing, the District Court rejected all but one of Crayton’s arguments. The
Distri ct Court agreed with Crayton that the two

- level computer enhancement was unreasonable because it applie d in almost every child pornography case. Without the
two

- level computer enhancement, the District Court noted that Crayton’s Guidelines range would be 6 3 to 78 months ’ imprisonment. The District Court then sentenced Crayton to 78 months in prison followed by ten years of supervised release. Crayton filed this timely appeal.
II. The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdicti on under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We review a sentence’s procedural and4

substantive reasonableness for abuse of discretion. 1 In reviewing a sentence’s procedural reasonableness, we ensure that the district court (1) correctly calculated th e defendant’s Guidelines range, (2) considered and ruled on motions for departure under the Guidelines, and (3) exercised its discretion by meaningfully considering the sentencing factors set forth in 18 U.S.C. § 3553(a) , regardless of whether the court ac tually varies from the Guidelines sentence. 2 The third step requires district courts to “acknowledge and respond to any properly presented sentencing argument which has colorable legal merit and a factual basis.” 3 If a sentence is procedurally reasonable, we then review it for substantive reasonableness, reversing “only where no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided.” 4
III. Crayton argues on appeal that his sentence is procedurally unreasonable because the District Court failed to meaningfully consider both his argument for a variance to avoid unwarranted sentencing disparities in child pornography cases and his policy arguments against application of the afo rementioned sentencing enhancements. As explained below, Crayton’s arguments are unpersuasive.

1 United States v. Freeman , 76 3 F.3d 322, 335 (3d Cir. 2014). 2 United States v. Flores

- Mejia , 75 9 F.3d 253, 256 (3d Cir. 2014) (en banc). 3 Id. (internal quotation marks omitted). 4 Freeman , 763 F.3d at 33 5 (internal quotation marks omitted).5 A. Crayton first contends that the District Court failed to meaningfully consider his argument that a significant downward variance was necessary in this case t o avoid unwarranted sentencing disparities. In his sentencing memorandum, Crayton cited a series of cases from the Western District of Pennsylvania and across the country where district courts imposed non

- incarceration sentences or otherwise varied signifi cantly downward in child pornography possession cases. According to Crayton, the District Court failed to consider this argument because its only express reference to disparities related to a different argument about Crayton’s need to care for his infirm p arents

. This argument is belied by the record. At a general level, the District Court recognized Crayton’s policy

- based arguments, which included his argument that the Guidelines were unduly harsh in child pornography possession cases, but concluded they

w ere “generally unpersuasive.” 5 The District Court also specifically addressed the substance of Crayton’s sentencing

- disparities argument, stating: [E]ven if I were to disregard the [G]uideline[s] range for this offense, as some courts have done , I believe the 78

- month sentence imposed here is sufficient but not greater than necessary to comply with the purposes of [§] 3553 and that this sentence accounts for all the information contained in the record and reflects the very serious nature of Defendant’s cond uct and the needs for just punishment, public protection, deterrence, and rehabilitation. 6

5 App. 189. 6 App. 190 (emphasis added)

.6

In other words, the District Court acknowledged Crayton’s argument for disregarding the Guidelines range entirely and imposing a non

- incarceration or significantly reduced sentence and noted that other courts in other cases have followed this approach. The District Court simply rejected the argument based on the facts of Crayton’s case and its assessment of the other § 3553(a) factors. Additionally, by correctly ca lculating and reviewing the Guidelines range, the District Court “ necessarily gave significant weight and consideration to the need to avoid unwarranted disparities

. ” 7 Although the District Court might have said more, its conclusion that a within

- Guideline s sentence was appropriate here despite examples of below

- Guidelines sentences in other cases was legally sufficient. 8 Finally, Crayton provided minimal information about the other cases he relied on in making his disparities argument . He merely included the defendants’ conviction s of child pornography crime s , their Guideline s ranges, and their sentences . In so doing, Crayton did not provide enough information to allow the District Court to conclude that these other defendants’ offenses and histories were sufficiently similar to Crayton’s offense and history to warrant a downward variance under § 3553(a)(6). For example, none of the cases Crayton cited appear to involve a defendant like himself who either accessed and produced child pornography or engaged in conduct “so dangerously close to

7 Gall v. United States , 552 U.S. 38, 54 (2007). 8 See United States v. Irving , 554 F.3d 64, 76 (2d Cir. 2009) (“[A] reviewing court’s concern about unwarranted disparities is at a minimum when a sentence is within the Guidelines range.” (internal quota tion marks omitted)).7

the line” while on bond, 9 but still received a below

- Guidelines sentence. It is therefore unsurprising that the District Court’s discussion of this argument was brief. Accordingly, we conclude that the District Court m eaningfully consider ed Crayton’s sentencing disparity argument and did not abuse its discretion by rejecting it.
B. Crayton next argues that the District Court imposed a procedurally unreasonable sentence because it failed to meaningfully consider his pol icy

- based attacks on the five

level enhancement under U.S.S.G. § 2G2.2(b)(7)(D) for an offense involving over 600 images and the four

- level enhancement under U.S.S.G. § 2G2.2(b)(4) for an offense involving materials portraying sadistic, masochistic, or vio lent conduct. Crayton’s argument misses the mark again. There is no doubt the District Court recognized its authority to vary downward based on a policy disagreement with the Guidelines

— the Court rejected the two

- level computer enhancement for this reason . For the other enhancements, however, the District Court found Crayton’s policy

- based attacks “generally unpersuasive” and, because there was no factual dispute regarding whether the enhancement applied, incorporated the enhancements into the Guidelines

c alculation. No thing more was required of the District Court to justify its decision to adhere to the policy decision s underlying the enhancement s that are incorporated into the Guidelines. Accordingly, the District Court did not abuse its discretion on thi s ground.

9 App. 186.8 IV. For the reasons set forth above, we will affirm the District Court’s judgment of
sentence.