IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-11015

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

CHRISTOPHER J. ABBATE,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:10-CR-29-1

Before JOLLY, GARZA, and STEWART, Circuit Judges.

PER CURIAM:*

Christopher J. Abbate appeals from his conviction of possession of child

pornography. He argues that the district court imposed a substantively

unreasonable sentence by varying from his 78-97 month advisory guideline

sentencing range to the maximum statutory sentence of 120 months of

imprisonment. He also challenges as substantively unreasonable the life term

of supervised release imposed by the district court.

United States Court of Appeals

Fifth Circuit

F I L E D

July 29, 2011

Lyle W. Cayce

Clerk

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.

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No. 10-11015

The appellant’s brief articulates the factors listed at § 3553(a), then

contends that Abbate’s sentence was longer than necessary to achieve these

factors because of his military service; because his offense did not involve the

actual distribution of pornography; because the only evidence of criminal conduct

during his life were the images underlying his criminal offense and the

statements of his former girlfriend to investigators; because evidence presented

at sentencing suggested that his former girlfriend lied about when she became

sexually active with him and when she became pregnant; and because he is a

loving father who worked to provide for his children.

Abbate’s arguments based on United States v. Dorvee, 616 F.3d 174 (2d

Cir. 2010), are raised for the first time on appeal. Those arguments are reviewed

under the plain error standard. See United States v. Magwood, 445 F.3d 826,

828 (5th Cir. 2006). To establish plain error, a defendant must show a forfeited

error that is clear or obvious and that affects his substantial rights. Puckett v.

United States, 129 S. Ct. 1423, 1429 (2009). If the defendant makes such a

showing, this court has the discretion to correct the error, but only if it seriously

affects the fairness, integrity, or public reputation of judicial proceedings. Id.

Reliance on Dorvee is misplaced. We will not second-guess a district

court’s sentencing decision on the basis that a particular guideline may not be

empirically based. United States v. Mondragon-Santiago, 564 F.3d 357, 367 (5th

Cir. 2009).

Defense counsel did not place his sentencing memorandum or its

supporting documents into the record when given the opportunity to do so by the

district court. Abbate has failed to satisfy his burden of ensuring that this court

has a record sufficient to consider any of those materials, see United States v.

Dunham Concrete Prods., Inc., 475 F.2d 1241, 1251 (5th Cir. 1973), including

any evidence in those materials that might have called into question his former

girlfriend’s credibility. Moreover, the district court did not state that Abbate’s

relationship with his former girlfriend had any effect on the sentence.

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No. 10-11015

The district court varied upward to 120 months of imprisonment from a

78-97 month guideline range. The court expressed concern that Abbate was not

a typical pornography defendant, as he had been viewing child pornography for

10 years and had a collection of 20,000 images of minors of all ages. The images

described in the presentence report showed children as victims of violent adult

sexual conduct and as participants in bestiality. The district court thus

addressed in detail Abbate’s history and characteristics and the seriousness of

his offense. The district court stated that the 120-month sentence would protect

the public from further crimes that Abbate might commit. The district court did

not provide a detailed explanation about how the public would be protected, but

the record indicates that Abbate was a dedicated consumer of images depicting

the extreme sexual exploitation of children.

The explanation for the variance was consistent with 18 U.S.C. § 3553(a). 

See United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006). Moreover, the

same reasons provided for the variance justified the degree of the variance. 

Abbate’s sentence of imprisonment was 23 months higher than the high end of

the guideline sentencing range. He possessed a very large amount of extremely

violent, exploitative child pornography; in some of the video images, screaming

could be heard. The imposition of the statutory maximum prison sentence on

Abbate was reasonable and was not an abuse of discretion. See United States.

v. Cisneros-Gutierrez, 517 F.3d 751 764 (5th Cir. 2008).

A sentence within a properly calculated guideline sentencing range is

entitled to a rebuttable presumption of reasonableness on appellate review. 

United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008). Abbate’s

sentence to a life term of supervised release was recommended by the

Guidelines, see § 5D1.2(b)(2), p.s., and is presumptively reasonable. See GomezHerrera, 523 F.3d at 565-66. Abbate has presented no arguments rebutting the

presumption of reasonableness given to his sentence of supervised release.

AFFIRMED.

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