IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-20730

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JAMES KELLY HILTON,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:17-CR-293-1

Before BENAVIDES, HIGGINSON, and ENGELHARDT, Circuit Judges.

PER CURIAM:*

James Kelly Hilton appeals the 480-month, within-guidelines sentence 

he received following his guilty plea conviction to one count of sexual 

exploitation of a minor and one count of possession of child pornography, 

challenging the procedural and substantive reasonableness of his sentence. 

Hilton contends that the district court failed to adequately explain his sentence 

by not addressing his arguments for a below-guideline sentence. He further 

 

* 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

November 16, 2018

Lyle W. Cayce

Clerk

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No. 17-20730

2

urges that the district court gave insufficient weight to his minimal criminal 

history and the mitigating evidence of his mental health. 

In reviewing sentences for reasonableness, we first determine whether 

the district court committed a significant procedural error, including “failing 

to adequately explain the chosen sentence.” Gall v. United States, 552 U.S. 38,

51 (2007). We ordinarily review the substantive reasonableness of the 

sentence for abuse of discretion, id., but where the defendant failed to preserve 

an error in the district court, we review for plain error, United States v. Peltier, 

505 F.3d 389, 391-92 (5th Cir. 2007). Hilton did not object to either the 

procedural or substantive reasonableness of his sentence in the district court.

Although Hilton acknowledges that we apply plain error review when a 

defendant fails to object to the reasonableness of the sentence imposed in the 

district court, he seeks to preserve the issue for further review. To show plain 

error, Hilton must show a forfeited error that is clear or obvious and that 

affects his substantial rights. Puckett v. United States, 556 U.S. 129, 135 

(2009). If he makes such a showing, we have the discretion to correct the error 

but only if it seriously affects the fairness, integrity, or public reputation of 

judicial proceedings. Id.; see also Rosales-Mireles v. United States, 138 S. Ct. 

1897, 1905 (2018).

At sentencing, the district court listened to Hilton’s arguments for a 

lower sentence, including his immediate confession when confronted by 

authorities, his mental health issues, and his acknowledgement of his need for 

help. The court reviewed relevant evidence, including a psychological 

evaluation of Hilton and numerous victim impact statements. In imposing the 

sentence, the district judge explained his concerns about the likelihood that 

Hilton would repeat his actions and the lifelong harm he caused to his victims, 

and expressed his hope that Hilton get the treatment he needed. Even if the 

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district court “might have said more,” the record makes clear that the court 

considered “the evidence and arguments,” and its statement of reasons for the 

sentence imposed was “legally sufficient.” Rita v. United States, 551 U.S. 338, 

358-59 (2007); see also United States v. Mondragon-Santiago, 564 F.3d 357, 

360 (5th Cir. 2009) (stating that the reasons must be sufficient to permit the 

appellate court to conduct a meaningful review). Thus, Hilton has not shown 

a clear or obvious error with respect to the adequacy of the reasons for the 

sentence imposed. See Puckett, 556 U.S. at 135. Moreover, Hilton concedes he 

cannot show that a more thorough explanation would have resulted in a lower 

sentence, and therefore he cannot prevail with this claim on plain error review. 

See Mondragon-Santiago, 564 F.3d at 364-65. He raises the argument solely 

to preserve it for possible further review.

Because the district court imposed a sentence within the properly 

calculated guidelines range, Hilton’s sentence is entitled to a rebuttable 

presumption of reasonableness. See United States v. Alonzo, 435 F.3d 551, 554 

(5th Cir. 2006). The district court was aware of Hilton’s minimal criminal 

history and mental health issues, as it reviewed his presentence report and 

psychological evaluation before sentencing him. His dissatisfaction with the 

district court’s weighing of the 18 U.S.C. § 3553(a) factors is insufficient to 

rebut the presumption of reasonableness that attaches to a within-guidelines 

sentence, as he has not shown that the district court failed to consider any 

significant factor, gave undue weight to any improper factor, or clearly erred 

in balancing the sentencing factors. See United States v. Cooks, 589 F.3d 173, 

186 (5th Cir. 2009).

The judgment of the district court is AFFIRMED.

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