Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-10800

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ROYCE DEAN POWERS,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:09-CR-38-1

Before GARZA, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

Royce Dean Powers pleaded guilty to one count of possession of child

pornography in violation of 18 U.S.C. § 2252(a)(4)(B). The district court imposed

a 97-month term of imprisonment to be followed by a life term of supervised

release. Powers appeals his sentence.

Sentences are reviewed for reasonableness. United States v. Mares, 402

F.3d 511, 520 (5th Cir. 2005). Pursuant to Gall v. United States, 552 U.S. 38, 51

(2007), this court must determine whether the sentence imposed is procedurally

United States Court of Appeals

Fifth Circuit

F I L E D

May 20, 2010

Lyle W. Cayce

Clerk

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No. 09-10800

2

sound, including whether the calculation of the advisory guidelines range is

correct, and whether the sentence is substantively reasonable. Review is for

abuse of discretion. Id. A district court’s interpretation and application of the

guidelines is reviewed de novo. See United States v. Villegas, 404 F.3d 355, 359

(5th Cir. 2005).

Powers first contends that the district court committed procedural error

by applying offense level enhancements for both distribution of child

pornography under U.S.S.G. § 2G2.2(b)(3)(F) and use of a computer under

§ 2G2.2(b)(6). Although the offense of conviction is possession, Powers used a

peer-to-peer program on his computer to obtain images of child pornography and,

also, to make the images available to others. Under the Guidelines, making the

images available to others constitutes distribution and may be accounted for as

relevant conduct. See § 2G2.2, comment. (n.1); U.S.S.G. § 1B1.3(a); cf. United

States v. Fowler, 216 F.3d 459, 461-62 (5th Cir. 2000). Multiple enhancements

are permissible except when specifically prohibited by the applicable Guideline.

See United States v. Jones, 145 F.3d 736, 737 (5th Cir. 1998); U.S.S.G. § 1B1.1,

comment. (n.4(A)). Section 2G2.2 contains no such prohibition.

Powers also challenges the substantive reasonableness of his sentence. If

the district court imposes a sentence within a properly calculated guidelines

range, as herein, we may apply a presumption of reasonableness to the sentence

on appellate review, inferring that the district court considered all the relevant

sentencing factors. Rita v. United States, 551 U.S. 338, 347 (2007); see also

United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.), cert. denied,

129 S. Ct. 328 (2008).

At sentencing, the district court had before it the presentence report (PSR)

and PSR Addendum, Powers’s objections, and the Government’s responses. The

district court adopted the calculations and findings of the PSR; heard Powers’s

expression of remorse; and considered counsel’s arguments for a lower sentence

based on Powers’s mental health issues, history of substance abuse, and medical

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No. 09-10800

3

problems. As evidenced by findings in the PSR, the court was further aware of

Powers’s lack of criminal history and lifetime of responsible conduct. The court,

however, did not agree that these factors merited a sentence below the

applicable guidelines range. Powers has failed to show that the district court’s

presumptively reasonable choice of a within-guidelines sentence was an abuse

of discretion. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir.

2008); United States v. Rodriguez, 523 F.3d 519, 526 (5th Cir. 2008).

The judgment of the district court is AFFIRMED.

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