IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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. Sherley appeals his 420-month sentence

for distributing child pornography. Sherley raises three issues on appeal, two

of which he concedes are foreclosed. We AFFIRM.

Relying on a Second Circuit case, Sherley first contends that his sentence

is substantively unreasonable because the child-pornography Guideline lacks an

empirical basis and systematically results in sentences disproportionate to those

necessary to effectuate the sentencing goals of 18 U.S.C. § 3553(a). See U.S.S.G.

United States Court of Appeals

Fifth Circuit

F I L E D

July 9, 2012

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. 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 lead 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 next asserts that the Fifth and Sixth Amendments require that

any fact going to a sentence’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

engaged in a prior pattern of sexual abuse; that he received images of child

pornography in exchange for distributing such images; and that he possessed

more than 600 such images at the time of his arrest. These facts were alleged

in the PSR. Sherley failed to object to the PSR’s contents, which the district

court adopted as its factual findings. As Sherley admits, precedent forecloses

this issue. See United States v. Rhine, 583 F.3d 878, 891 n.50 (5th Cir. 2009)

(“‘[T]he sentencing judge is entitled to find by a preponderance of the evidence

all the facts relevant to the determination of a guideline sentencing range.’”

(quoting United States v. Johnson, 445 F.3d 793, 798 (5th Cir. 2006))).

In his only issue not foreclosed by circuit precedent, Sherley argues that

the district court abused its discretion by imposing a sentence based upon a

clearly erroneous “legislative fact”: that Congress “thought” about § 2G2.2’s

allegedly harsh sentencing regime. This argument stems from the district

court’s ruminations that, although it had “trouble with” similar cases because

the “sentences are severe,” it was “sure thought has been 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

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minute, stealth amendment to a complex bill covering myriad other topics and,

therefore, it is inaccurate to say that Congress “thought” about it. Sherley,

however, failed to contemporaneously 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 passing remarks 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 fact-finding hearing—that Congress gave “enough”

thought to a bill’s enactment. We have difficulty envisioning what such a

hearing would look like. In any event, the district 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” sentences, 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

actually molest a child, and that he started . . . being involved in this child

pornography offense not too long after he had served a 10-year sentence for that

conduct.” The district court found that the imposed sentence “adequately 1

address[ed]” the “concerns” under § 3553(a) in light of Sherley’s sex-abuse

history, his conduct in the instant case, and the Guidelines calculation. We

discern no error warranting reversal in this conclusion.

AFFIRMED.

 The district court referred to the PSR’s description of Sherley’s Texas conviction for 1

indecency with a child by sexual contact, for which he served ten years in state prison and is

required to register as a sex offender.

3

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