### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-10626

UNITED STATES OF AMERICA, Plaintiff–Appellee
v. ANTHONY R. SHERLEY, Defendant–Appellant

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:11-CR-5

Before KING, PRADO, and HAYNES, Circuit Judges. PER CURIAM: * Defendant-Appellant Anthony R. S h erley appeals his 420-month sentence f o r di stributing child pornography. Sherley raises three issues on appeal, tw o of which he concedes are foreclosed. We AFFIRM. Relying on a Second Circuit case, Sherley first contends that his sentence is substantively unr e a s o n ab l e b e c ause the child-pornography Guideline lacks an
e m p iric al basis and systematically results in sentences disproportionate to tho s e necessary to effectuate the sentencing goals of 18 U.S.C. § 3553(a). See U.S.S.G. U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D July 9, 20 12 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-10626 Document: 00511913836 Page: 1 Date Filed: 07/09/2012No. 11-10626

§ 2G2.2; United States v. Dorvee , 616 F.3d 174, 182-88 (2d Cir. 2010). Sherley acknowledges that this argument is foreclosed by analogy based on our decision in United States v. Duarte , 569 F.3d 528, 530-31 (5th Cir. 2009). We recently declined to follow the Second Circuit ’ s l e a d on this question and specifically rejected the argument Sherley advances here. See United States v. Miller , 665 F.3d 114, 119-26 (5th Cir. 2011), cert. denied , 2012 WL 894600 (June 18, 2012). Sherley n e xt a s s erts that the Fifth and Sixth Amendments require that any fact going to a se n t e n c e ’ s reasonableness be proven to a jury beyond a reasonable doubt. He specifically argues that the district court erred in finding, when such facts were neither contained in the indictment nor admitted, that he

e ngaged in a prior pattern of sexual abuse; that he received images of chil d pornography in exchange for distributing such images; and that he possessed

more than 600 su ch images at the time of his arrest. These facts were alleged in the PSR. Sherley failed to object to the PSR’s cont e n t s, which the district court adopte d a s i t s factual findings. As Sherley admits, precedent forecloses this issue. See United States v. Rhine , 583 F.3 d 8 7 8 , 891 n.50 (5th Cir. 2009) (“‘[T]he sentencing judge is entitled to find by a preponderance of the evidence all the facts relevan t t o t he determination of a guideline sentencing range.’” (quoting United States v. Johnson , 445 F.3d 793, 798 (5th Cir. 200 6))). In his only issue not foreclosed by circuit precedent, Sherley argues that the district court abused its discret i o n b y i m posing a sentence based upon a clearly e r r o neous “legislative fact”: that Congress “thought” about § 2G2.2’s allegedly harsh sentencing regime. This argument stems from the district court’s rumin a ti o n s that, although it had “trouble with” similar cases because the “sentences are severe,” it was “sure thought ha s b e e n given to it and that when Congress directed the guidelines to be as they are, they were based on what members of Congress thought was appropriate, and

. . . the Courts should [not] be second-guessing them.” In Sherley’s view, § 2G2.2 resulted from a last2 Case: 11-10626 Document: 00511913836 Page: 2 Date Filed: 07/09/2012No. 11-10626

minute, stealth amendment to a complex bill covering myriad other topics and, therefore, it is inaccurate to say th a t Congress “thought” about it. Sherley, however, failed to contemporaneou s ly object to the district court’s reference to congressional consideration of the Guideline amendment, arguably limiting our review to plain error. See Puckett v. United States , 556 U.S. 129, 135 (2009). Regardless of the standard of review, we conclude that the district court committed no error. In context, the district court’s pa s s i n g r emarks merely reflected its respect for Congress. We disagree with Sherley’s implicit assertion that a district court may not rely on Congress’s expressed wishes unless the court first concludes—after a f act

- f in din g h e arin g—that Congress gave “enough” though t t o a bill’s enactment. We have difficulty envisioning what such a hearing would look like. In any eve nt , t h e di s trict court’s comments do not represent a “factual finding” that is or could be “clearly erroneous.” The sentencing transcript, moreover, makes explicit that the district court based its sentencing decision on factors permissible under § 3553(a). Although the district court noted that some child pornography cases result in “troub[ling]” and “severe” se n t e n c e s , it stated that Sherley’s case was “not as difficult” because he “ha[d] engaged in [prior] conduct that proves he has the capacity to

a ctually molest a child, and that he started

. . . being involved in t h i s c h i l d pornography offense not too long after he had served a 10-year sentence for that conduct.” The di strict court found that the imposed sentence “adequately

1 address[ed]” the “concerns” under § 3553(a) in light of Sherley’s s e x - abuse history, his conduct in the instant case , and the Guidelines calculation. We discern no error warranting reversal in this conclusion. AFFIRMED.

The dist ric t cour t ref err ed to the PSR’sd es cri pt ion of Sherle y’sTexas convic tio n for 1 inde cenc y wi th a child by se xual cont act , for wh ich he se rved ten years in st ate pris on and is requ iredt o r egis terasa se x of fen der

. 3 Case: 11-10626 Document: 00511913836 Page: 3 Date Filed: 07/09/2012