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United States v. Grigsby

United States Court of Appeals, Tenth Circuit

April 15, 2014

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
PHILIP ANDRA GRIGSBY, a/k/a philag62@yahoo.com, a/k/a mufdvr62@yahoo.com, a/k/a imacumgobbler@yahoo.com, Defendant-Appellant

Petition for certiorari filed at, 07/10/2014

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS. (D.C. No. 6:12-CR-10174-JTM).

James A. Brown, Assistant United States Attorney (Barry R. Grissom, United States Attorney, with him on the brief), Topeka, Kansas, for Plaintiff-Appellee.

John K. Henderson, Jr., Assistant Federal Public Defender, Wichita, Kansas, for Defendant-Appellant.

Before HARTZ, BALDOCK, and BACHARACH, Circuit Judges.

OPINION

BALDOCK, Circuit Judge.

Defendant Philip Grigsby says his 260-year sentence imposed pursuant to the child pornography production guideline, U.S.S.G. § 2G2.1, is procedurally and substantively unreasonable because the guideline is " defective." According to Defendant, the production guideline routinely generates offense levels that result in a recommended guideline sentence in excess of the statutory maximum, and fails to distinguish between levels of culpability by establishing enhancements for conduct

Page 909

present in most cases and thus undeserving of punishment beyond the core offense. Defendant asks us to " remand for [re]sentencing without regard to the [G]uidelines." Unfortunately for Defendant, a district court does not err by deferring to the Guidelines where the sentence imposed is justified in light of the factors set forth in 18 U.S.C. § 3553(a).[1] Exercising jurisdiction pursuant to 18 U.S.C. § 3742(a)(1), we uphold Defendant's sentence.

I.

Defendant pled guilty to eight counts of sexual exploitation of a nine-year-old child for the purpose of producing visual depictions in violation of 18 U.S.C. § 2251(a), one count of possessing with intent to view child pornography in violation of 18 U.S.C. § 2252(a)(4)(B), and one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Based on a total offense level of 43 and a criminal history category of II, Defendant's initial guideline imprisonment range under the 2012 version of the Guidelines was life. But because the statutory maximum sentence of 260 years was less than life, U.S.S.G. § 5G1.2(b) established the former term as the recommended guideline sentence. Following that recommendation, the district court sentenced Defendant to 260 years imprisonment. In deciding Defendant's sentence was sufficient but not greater than necessary to meet the sentencing factors identified in § 3553(a)(2), the court referred to the emotional damage Defendant caused his victim, the antisocial behavior Defendant had engaged in over the course of his life, and the public's need for protection from Defendant. The court discounted Defendant's difficult childhood as outweighed by the harm he had caused.[2]

II.

We review a sentence of imprisonment for reasonableness under an abuse of discretion standard. United States v. Kieffer,681 F.3d 1143, 1164 (10th Cir. 2012). In sentencing a defendant, first the district court " shall consider . . . the kinds of sentence and the sentencing range established for . . . the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines." 18 U.S.C. § 3553(a)(4)(A). Unremarkably then, the Supreme Court has told us " the Guidelines should be the starting point and initial benchmark" in sentencing. Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). The Guidelines are " the natural starting point from which the sentencing court exercises its discretion under § 3553(a)." Kieffer, 681 F.3d at 1164 (internal quotations omitted). In this Circuit, a within-guideline-range sentence ...


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