1

The Honorable Ortrie D. Smith, United States District Judge for the Western

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-1601

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri. 

Leslie Paul Pittock, *

* [UNPUBLISHED]

Appellant. *

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Submitted: April 14, 2008

Filed: August 22, 2008

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Before WOLLMAN, BEAM, and RILEY, Circuit Judges.

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PER CURIAM.

Leslie Paul Pittock pled guilty to transportation and possession of child

pornography in violation of 18 U.S.C. § 2252A(a)(1), (5). The district court1

sentenced him to concurrent sentences of 210 months’ imprisonment on the

transportation charge and 120 months on the possession charge; lifetime supervised

release; and a $200 special assessment. Pittock appeals, contending that the district

court erred in affording a presumption of reasonableness to the sentencing range

established by the Sentencing Guidelines. We affirm.
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Pittock stipulated to all of the facts necessary for the Guidelines enhancements

applied by the district court, and thus the Sixth Amendment is not implicated. See

United States v. Perez-Ramirez, 415 F.3d 876, 877 (8th Cir. 2005).

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At Pittock’s sentencing hearing, which took place prior to the Supreme Court’s

decision in Rita v. United States, 127 S. Ct. 2456 (2007), the district court stated:

The sentencing range calculated pursuant to the United States Sentencing

Guidelines is today under the extant law of this Circuit a presumptively

reasonable range. There is a case before the United States Supreme

Court which might result in a change in that approach but nevertheless

that is the law today and that is the law I am required by my oath to

follow and apply.

Sent. Tr. at 33. In light of Rita’s holding that “the sentencing court does not enjoy the

benefit of a legal presumption that the Guidelines sentence should apply,” id. at 2465,

the district court’s application of a presumption of reasonableness constituted a

significant procedural error. United States v. Greene, 513 F.3d 904, 907 (8th Cir.

2008).

Pittock raised a timely objection during sentencing and thereby preserved his

right to challenge the error. Accordingly, we review for harmless error the district

court’s application of the presumption. United States v. Henson, No. 07-1993 (8th

Cir. July 25, 2008); Greene, 513 F.3d at 908; see also United States v. Cullen, 432

F.3d 903, 906 (8th Cir. 2006). As the beneficiary of a non-constitutional2

 error under

Booker or Rita, the government bears the burden of demonstrating beyond a grave

doubt that the error did not substantially influence the outcome of the sentencing

proceedings. See Cullen, 432 F.3d at 906.

The government argues that because the district court declined to exercise its

discretion to grant a traditional departure and carefully considered all of the § 3553(a)

factors, it did not solely rely on the presumption of reasonableness in imposing
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sentence but imposed what it determined to be a reasonable sentence in the

circumstances. We agree. In its thorough consideration of the § 3553(a) factors, the

district court noted that Pittock’s case was not a normal child pornography case but

an unusual one in that it involved the possession of a large number of images,

including some that portrayed infants being sexually abused. Sent. Tr. at 33-34. The

district court concluded that a sentence within the Guidelines range, even if

“fearsome,” would promote respect for the law, protect the public from further crimes

instigated by Pittock, and avoid sentencing disparities. Sent. Tr. at 34-36. In contrast

to the situation in Greene, 513 F.3d at 907-08, the district court expressed no wish to

impose a sentence at variance with the Guidelines range, and it did not fail to assess

the relevant factors in determining the sentence. The district court acknowledged that

Pittock had presented grounds for a downward departure under the Guidelines, but it

declined to so depart, instead imposing a sentence at the bottom of the suggested

Guidelines range. See United States v. Perez-Ramirez, 415 F.3d at 878 (error

harmless where the district court “left unused some of its discretion”). In sum, we are

not left with a grave doubt that the district court would have imposed a different

sentence had it not applied a presumption of reasonableness to the sentencing range

recommended by the Guidelines. See Henson, slip op at 4-5.

The judgment is affirmed.

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