IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-60700

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

BRIAN ROBINSON,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 3:11-CR-49-1

Before DAVIS, CLEMENT, and COSTA, Circuit Judges.

PER CURIAM:*

Brian Robinson pleaded guilty to one count of production of child 

pornography, one count of distribution of child pornography, and one count of 

possession of child pornography. The district court sentenced him within the 

applicable guidelines range, which was based on the statutory maximum terms 

of imprisonment for each count, to a total prison term of 720 months. In a prior 

opinion, we concluded that the district court procedurally erred in finding that 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

July 15, 2015

Lyle W. Cayce

Clerk

 Case: 14-60700 Document: 00513116635 Page: 1 Date Filed: 07/15/2015
No. 14-60700

2

it lacked discretion to consider Robinson’s cooperation with authorities in the 

absence of a U.S.S.G. § 5K1.1 motion from the Government and remanded for 

resentencing. See United States v. Robinson, 741 F.3d 588, 598-603 (5th Cir. 

2014). On remand, the district court again imposed a total sentence of 720

months. Robinson appeals, arguing that this sentence is substantively 

unreasonable.

We review the substantive reasonableness of a sentence under an abuse 

of discretion standard, taking into account the totality of the circumstances. 

United States v. Rodriguez, 660 F.3d 231, 233 (5th Cir. 2011). Where, as here, 

the district court imposes a sentence that is within a properly calculated 

guidelines range, we apply a rebuttable presumption of reasonableness. See 

United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). “The presumption is 

rebutted only upon a showing that the sentence does not account for a factor 

that should receive significant weight, it gives significant weight to an 

irrelevant or improper factor, or it represents a clear error of judgment in 

balancing sentencing factors.” Id.

Robinson first argues that his sentence does not account for a sentencing 

factor that should have received significant weight: the need to avoid 

unwarranted sentence disparities. See 18 U.S.C. § 3553(a)(6). But in this 

circuit, the unwarranted disparity factor is not entitled to significant weight 

when the sentence imposed—like Robinson’s—falls within the Guidelines 

range. See United States v. Diaz, 637 F.3d 592, 604 (5th Cir. 2011). Moreover, 

Robison has not established that his sentence was disparate from the sentences

of similarly situated defendants. He points to no nationwide statistics. See 

United States v. Balleza, 613 F.3d 432, 435 (5th Cir. 2010). Instead, he asserts 

that he was similarly situated to Eric Schuster, who was convicted of similar 

conduct and also cooperated with authorities. Schuster, who faced a 

 Case: 14-60700 Document: 00513116635 Page: 2 Date Filed: 07/15/2015
No. 14-60700

3

Guidelines range sentence of 360 months, received 262 months. See United 

States v. Schuster, 706 F.3d 800, 803 (7th Cir. 2013). Robinson has not shown 

that there is an unwarranted disparity between his sentence and Shuster’s. 

Robinson asserts that the district court did not specifically discuss 

Schuster or the disparity arguments during the resentencing, but the district 

court heard his arguments and stated that it had read and reviewed the 

information he submitted, which included the comparisons to Schuster’s case. 

While there are some similarities between the two men, we find that they are 

not similarly situated and, thus, “are not appropriate points for comparison in 

a reasonableness analysis.” Cooks, 589 F.3d at 186. For example, Robinson 

pleaded guilty to three separate counts with a combined statutory maximum 

of 720 months, while Schuster pleaded guilty to a single count with a statutory 

maximum of 360 months. The Government also moved for a § 5K1.1 reduction 

in Schuster’s case, but it specifically declined to do so in Robinson’s case; 

disparities resulting from substantial assistance departures were intended by 

Congress and are not a basis for arguing that an unwarranted disparity exists. 

See United States v. Candia, 454 F.3d 468, 476 (5th Cir. 2006). Finally,

although both men victimized their own children, the record reflects that 

Robinson’s conduct involved more egregious sexual contact and that his victim 

has suffered more psychological consequences as a result. Because Robinson 

has not shown that he and Schuster are similarly situated, he has not shown 

that the sentence disparity factor should have received significant weight. See

Cooks, 589 F.3d at 186.

Robinson also argues that his sentence represents a clear error of 

judgment in balancing the sentencing factors. See Cooks, 589 F.3d at 186. He

asserts that other sentencing factors, such as his cooperation with authorities, 

the disparity with Schuster’s sentence, and his own efforts at post-sentencing 

 Case: 14-60700 Document: 00513116635 Page: 3 Date Filed: 07/15/2015
No. 14-60700

4

rehabilitation should have outweighed the district court’s focus on the 

reprehensible nature of his offenses. We conclude that Robinson has not shown 

a clear error in balancing the sentencing factors. His challenge represents a

disagreement with the district court’s balancing of the § 3553(a) factors, an 

analysis which the district court was in a better position than this court to 

perform. See United States v. Hernandez, 633 F.3d 370, 375 (5th Cir. 2011). 

Such disagreement is insufficient to overcome the presumption of 

reasonableness. See United States v. Alvarado, 691 F.3d 592, 597 (5th Cir. 

2012). 

AFFIRMED.

 Case: 14-60700 Document: 00513116635 Page: 4 Date Filed: 07/15/2015