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w . v i l l a no v a . e du/thir dc ir c uit_2015/566NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 13

- 1830

_____________ UNITED STATES OF AMERICA

v. MATTHEW ACKERMAN ,

Appellant

_____________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. No. 5

- 11

- cr - 00740

- 001 ) District Judge: Honorable James K. Gardner

_____________ Submitted Under Third Circuit L.A.R. 34.1(a)

May 22 , 2015

_____________ Before: FUENTES, GREENAWAY, JR., and NYGAARD, Circuit Judges

. ( Filed : June 8, 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

GREENAWAY, JR. , Circuit Judge

. Appellant Matthew Ackerman appeals the District Court ’ s se ntence, imposed a fter he pled guilty to receipt of child pornography, possession of child pornography, and conspiracy to receive, distribute, and possess child pornography. Ackerman contends
that the District Court ’ s sentence was substantively and procedu rally unreasonable because the District Court failed to meaningfully consider Ackerman’s arguments for a
downward variance

. For the reasons that follow, we will affirm the District Court ’ s judgment of conviction

. I. BACKGROUND This case stems from a feder al investigation into a large

- scale child pornography ring. In the course of that investigation, law enforcement officers received information
t hat implicated Ackerman and co

- defendant Thomas Syfor in the receipt and possession of child pornography. A le gal search of Ackerman’s residence recovered printed images depicting child pornography, several computers, and a camera that contained images of adolescent boys playing in a playground across the street from Ackerman’s residence. A search of the computer s revealed thousands of images and dozens of videos of child pornography. Ackerman pled guilty to receipt of child pornography , in violation of 18 U.S.C. § 2252(a)(2), and possession of child pornography and aiding and abetting, in violation of
18 U.S.C. § 2252(a)(4)(B) and § 2

. A related case was transferred to the District Court; Ackerman entered a guilty plea in that case to one count of conspiracy to receive,3

distribute, and po s sess child pornography, in violation of 18 U.S.C. §§ 2252(a)(2), (a)(4)(B ), (b)(l) and (b)(2). At sentencing , the Government presented uncontested evidence that Ackerman possessed 60 videos files and over 2,000 images of child pornography . The Government also presented evidence that Ackerman and Syfor : (1) engaged in a sexua l conversation with a 16

- year - old male; (2) performed a sex act on vide o camera for another minor male; and (3 ) arranged to meet a 15

- year - old boy at a local park. 1 The District Court also heard testimony presented by Ackerman , including testimony of Dr. Frank Dattilio , a clinical and forensic psychologist that offered expert testimony on the treatment and assessment of se x offenders. Based on a criminal history c ategory of I and an offense level of 37, Ackerman ’s
G uidelines range was 210 to 262 months i n prison . The District Court imposed a sentence of 210 months ’ imprisonment.
II. ANALYSIS 2 Ackerman argues that the District Court ’ s sentence was procedurally and substantively unreasonable

. 3 Under our three

- step sentencing framework, district courts

1 The boy mistook two other men at the park for Ackerman and Syfor and a fight broke out when the boy made sexually sugges tive comments to them . A ckerman left without meeting the boy.

2 The District Court had jurisdiction over this case pursuant to 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

3 We review sentences “ under a deferen tial abuse

- of

- discretion standard. ” Gall v. United States , 552 U.S. 38, 41 (2007). “ [W]e are to ensure that a substantively reasonable sentence has been imposed in a procedurally fair way. ” United States v.4

m ust: (1) “ calculate a defendant ’ s Guidelines sentence , ” (2) “ formally rul[e] on the motions of both parties and stat[e] on the record whether they are granting a departure, ” and (3) “ exercise[ ] [their] discretion by considering the relevant [§ 3553(a) ] fa ctors in setting the sentence they impose. ” United States v. Gunter , 462 F.3d 237, 247 (3d Cir. 2006) (citations and quotations omitted) (alterations in original)

. Under the third step, the district c ourt “ must ‘ acknowledge and respond to any properly pr esented sentencing argument which has colorable leg al merit and a factual basis. ’” Flores

- Mejia , 759 F.3d
at 256 (quoting United States v. Begin , 696 F.3d 405, 411 (3d Cir. 2012)). Ackerman does not challenge the District Court ’ s application of the first and second steps; therefore, we do not address them here. As to step three, Ackerman claims th at the District Court did not “ meaningfully consider [] Acker man ’ s arguments for a downward variance. ” 4 Appellant Br. at 16 . Although district courts are under an obligation to “ acknowledge and respond to any properly presented sentencing argument which has colorable legal merit and a factual basis, ” United States v. Ausburn , 502 F.3d 313, 3 29 (3d Cir. 2007) , they “ need not discuss and make findings as to each o f the

Levinson , 543 F.3d 190, 195 (3d Cir. 2008). W h en no objection is made in the district c ourt, sentencing procedure is reviewed for plain error. United States v. Flores

- Mejia , 759 F.3d 253, 256 (3d Cir. 2014) (en banc). Because Ackerman was sentenced before Flores

- Mejia was issued , review for abuse o f discretion is proper. Id. at 259. “ Applying that standard, we have held that a district court abuses its discretion when it fails to give

‘ meaningful consideration ’ to an argument advanced by the defendant. ” Id.

4 Specifically, Ackerman focuses on fo ur issues he claims the District Court ignored : (1) Ackerman ’ s lack of prior crim inal history; (2) Ackerman ’s claim that he was a victim of sexual abuse as a child; (3) the conclusion of Dr. Dattilio that Ackerman is a low risk for reoffending and is amena ble to treatment; and (4) Ackerman’s claim that the child pornography guidelines are empirically unsound.5

§ 3553(a) factors if the record makes clear that the court took the factors into account in sentencing. ” United States v. Kononchuk , 485 F.3d 199, 204 (3d Cir. 2007)

. All we require is that “ [t]he sentencing judge .

. . set forth enough to satisfy the appellate court that he has considered the parties ’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority. ” Rita v. United States , 551 U.S. 338, 3 56 (2007).
T h e sentencing colloquy evidences that the District Court heard and considered argument from defense counsel and was thorough in its consideration of the § 3553(a) factors. Notably, the District Court permitted Dr. Dattilio to testify at great length, over the course of two days, and interjected its own questio ns on several occasions. Although the District C ourt recognized the presence of a “ few mitigating factors , ” it concluded that they “ justified a . . . sentence

. . . in the low er range of the Guidelines.” App. 705.
Further , the District Court found that this was “ the only extent to which [ ] mitigation [was] appropriate

. . . because of the heinousness of these crimes. ” App. 705. The record demonstrates the Gunter test is met. T here is no procedural error. 5
We next consider the substantive reasonablenes s of the sentence. Our review of the applicati on of the § 3553(a) factors focuses on the totality of the circumstances and is

5 As noted supra , Ackerman also claims that the District Court failed to consider sufficiently Ackerman’s argument that the child pornography Guidel ines merit lesser deference in this case , as they are not “empirically based.” Appellant Br. at 19 (emphasis omitted). However, as we emphasized in United States v. Grober , “ if a district court does not in fact have a policy disagreement with § 2G2.2, it is not obligated to vary on this basis. ” 624 F.3d 592, 609 (3d Cir. 2010) . Furthermore, the District Court imposed the lowest possible within

- Guidelines sentence . Accordingly, we remain unconvinced by Ackerman’ s argument and conclude the sentence he re ceived was not procedurally unreasonable.6

highly deferential. United States v. Tomko , 562 F.3d 558, 567

– 68 (3d Cir. 2009). Indeed, even if this Court would have imposed a different sentence, we must not do so as long as any reasonable court could have imposed the given sentence. Id. at 568

. The District Court ’ s sentence of 210 months for three counts related to receiving and distributing child pornogra phy satisfied all of the elements of a substantively reasonable
sentence

. The District Court fully justified its sentence and gave app ropriate consideration to the § 3553(a) factors. Ackerman’ s Guidelines range was 210 to 262 months. The District Court sentenced Ackerman to the lowest possible Guidelines
sentence

. Ackerman has not met his burden of showing that a reasonable sentencing court would not have imposed the same sentence.
III. CONCLUSION For the foregoing reasons, we will affirm the judgment of conviction of the
Di strict Court.