United States v. Mark Slayton, 4th Cir. (2015)

UNPUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
No. 15-4000
UNITED STATES OF AMERICA,

Plaintiff Appellee,
v.
MARK EDWARD SLAYTON,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:14-cr-00201-CCE-1)
Submitted:
September 29, 2015
Decided:
October 27, 2015
Before KING, DIAZ, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mark A. Jones, BELL, DAVIS & PITT, PA, Winston-Salem, North

Carolina, for Appellant. Ripley Rand, United States Attorney,
Anand
P.
Ramaswamy,
Assistant
United
States
Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mark
imposed
Edward
Slayton
pursuant
pornography.
to
appeals
his
from
guilty
his
plea
78-month
to
sentence
accessing
child
On appeal, he contends that his below-Guidelines
sentence was both procedurally and substantively unreasonable.

Specifically,
he
contends
that
the
district
court
failed
to
consider his individual circumstances, gave too much deference

to the Guidelines range determined by U.S. Sentencing Guidelines
Manual
2G2.2
sentence.
(2013),
and
imposed
an
impermissibly
harsh
We affirm.
We review the district courts sentence, whether inside,

just outside, or significantly outside the Guidelines range,
under
United
deferential
States,
552
abuse-of-discretion
U.S.
38,
41
(2007).
standard.
In
Gall
conducting
v.
this
review, we first ensure that the district court committed no

significant procedural error, such as failing to calculate (or
improperly
calculating)
the
Guidelines
range,
treating
the
Guidelines as mandatory, failing to consider the [18 U.S.C.]

3553(a) [2012] factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence.
Id. at 51.
When rendering a sentence, the district
court must make an individualized assessment based on the facts

presented,
applying
the
relevant
3553(a)
specific circumstances of the case before it.

2
factors
to
the
United States v.
Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal quotation
marks and emphasis omitted).
The court must also state in open
court the particular reasons supporting its chosen sentence and

set forth enough to satisfy this court that it has considered
the parties arguments and has a reasoned basis for exercising
[its]
own
legal
decisionmaking
authority.
Id.
(internal
quotation marks omitted).

If
the
sentence
is
free
from
procedural
review it for substantive reasonableness.
error,
we
then
Gall, 552 U.S. at 51.
Substantive reasonableness review entails taking into account

the totality of the circumstances, including the extent of any
variance from the Guidelines range.
United States v. Pauley,
511 F.3d 468, 473 (4th Cir. 2007) (quoting Gall, 552 U.S. at
51).
Even if we would have imposed a different sentence, this
fact alone is insufficient to justify reversal of the district

court.
Id. at 474 (quoting Gall, 552 U.S. at 51).
We apply a
presumption on appeal that a sentence within or below a properly

calculated Guidelines range is substantively reasonable.
United
States v. Louthian, 756 F.3d 295, 306 (4th Cir.), cert. denied,
135 S. Ct. 421 (2014).
Here, the district court properly calculated and considered
the applicable Guidelines range and heard argument from counsel
and allocution from Slayton.
explicitly
considered
the
In imposing sentence, the court
majority
3
of
the
statutory
factors,
including the circumstances of the crime, deterrence and just

punishment.
The
court
was
particularly
concerned
about
the
seriousness of the crime and referred to the details in the

presentence report about the content of some videos found on
Slaytons computer.
heard
and
considered
The court further stated that, while it

Slaytons
arguments
for
probationary
sentence, the court was of the opinion that none of Slaytons

circumstances
warranted
greater
variance
than
variance the court imposed for such crimes. *
the
standard
Nonetheless, the
court acknowledged that Slaytons arguments supported a sentence

at the low end of the variant Guidelines range.
Contrary to Slaytons arguments, the court considered his
individual
Slaytons
circumstances.
circumstances
While
were
the
generally
court
those
determined
of
most
that
other
defendants charged with the same crime, this determination came

after
consideration
of
Slaytons
specific
characteristics.
Moreover, while Slayton argued that the court overweighted the

Guidelines range and failed to consider whether the sentence was
greater
than
necessary,
the
court
explicitly
considered
the
sentencing factors and concluded that a variant sentence below

*
The district court calculated a downward variance based

upon its conclusion that the USSG 2G2.2 overweighted the
number of images involved and the use of a computer. The court
stated that its regular practice was to calculate a variance
sentence based on a two-offense-level reduction in such cases.
the Guidelines range was appropriate.
Moreover, the court noted
that the requested probationary sentence was not supported by

the statutory factors.
As such, we conclude that the court made
no procedural errors in imposing sentence.
See United States v.
Helton, 782 F.3d 148, 154 (4th Cir. 2015) (To require more
explanation
would
unnecessarily
intrude
upon
the
district
courts primary and unique role in the sentencing process.).

Next, Slayton contends that his sentence was substantively
unreasonable because the district court relied too heavily on
the flawed child pornography guidelines.
Slayton avers that
these particular guidelines lack any empirical basis and almost

always result in a range near the statutory maximum, even for
low
level
offenders.
We
have
previously
rejected
similar
arguments and held that courts should give respectful attention

to Congresss view that child pornography crimes are serious
offenses
deserving
serious
sanctions.
United
States
v.
Strieper, 666 F.3d 288, 296 (4th Cir. 2012) (alterations and
internal quotation marks omitted); see also United States v.
Mondragon-Santiago,
564
F.3d
357,
366-67
(5th
Cir.
2009)
(recognizing that appellate courts are not required to discard

presumption
of
reasonableness
non-empirically-grounded
Guidelines
for
and
sentences
applying
based
on
presumption
accordingly); United States v. McLaughlin, 760 F.3d 699, 707-08

(7th Cir. 2014) (holding that sentencing court could consider
5
whether
the
applicable
disproportionate
but
Guidelines
that
imposing
were
sentence
outdated
and
based
the
on
Guidelines did not render sentence substantively unreasonable).

Here, the court balanced the statutory factors, particularly the
seriousness of the crime, against Slaytons lack of a criminal
record,
his
efforts
at
therapy
and
rehabilitation,
his
expression of remorse, his support system, and his positive work

history.
serious
The court concluded that Slaytons offense was too

to
justify
lower
sentence.
It
would
be
almost
unprecedented to credit a defendants challenge to a sentence as

substantively
unreasonable
reduced
term
the
Guidelines range.
of
when
the
imprisonment
district
below
court
the
actually
recommended
Helton, 782 F.3d at 155.
Accordingly, considering the totality of the circumstances,

Slayton has failed to rebut the presumption of reasonableness
applicable to his below-Guidelines sentence and has failed to
show
that
abused.
the
Thus,
district
we
courts
affirm.
We
considerable
dispense
with
discretion
oral
was
argument
because the facts and legal contentions are adequately presented

in the materials before this court and argument would not aid
the decisional process.
AFFIRMED

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

September 29, 2015

October 27, 2015

Before KING, DIAZ, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Mark A. Jones, BELL, DAVIS & PITT, PA, Winston-Salem, North

Unpublished opinions are not binding precedent in this circuit.

On appeal, he contends that his below-Guidelines

sentence was both procedurally and substantively unreasonable.

consider his individual circumstances, gave too much deference

We review the district courts sentence, whether inside,

review, we first ensure that the district court committed no

Guidelines as mandatory, failing to consider the [18 U.S.C.]

When rendering a sentence, the district

court must make an individualized assessment based on the facts

specific circumstances of the case before it.

The court must also state in open

court the particular reasons supporting its chosen sentence and

quotation marks omitted).

review it for substantive reasonableness.

Gall, 552 U.S. at 51.

Substantive reasonableness review entails taking into account

United States v. Pauley,

Even if we would have imposed a different sentence, this

fact alone is insufficient to justify reversal of the district

Id. at 474 (quoting Gall, 552 U.S. at 51).

presumption on appeal that a sentence within or below a properly

In imposing sentence, the court

including the circumstances of the crime, deterrence and just

seriousness of the crime and referred to the details in the

The court further stated that, while it

sentence, the court was of the opinion that none of Slaytons

variance the court imposed for such crimes. *

court acknowledged that Slaytons arguments supported a sentence

defendants charged with the same crime, this determination came

Moreover, while Slayton argued that the court overweighted the

sentencing factors and concluded that a variant sentence below

The district court calculated a downward variance based

the Guidelines range was appropriate.

Moreover, the court noted

that the requested probationary sentence was not supported by

As such, we conclude that the court made

no procedural errors in imposing sentence.

See United States v.

courts primary and unique role in the sentencing process.).

Slayton avers that

these particular guidelines lack any empirical basis and almost

arguments and held that courts should give respectful attention

(recognizing that appellate courts are not required to discard

accordingly); United States v. McLaughlin, 760 F.3d 699, 707-08

Guidelines did not render sentence substantively unreasonable).

expression of remorse, his support system, and his positive work

The court concluded that Slaytons offense was too

unprecedented to credit a defendants challenge to a sentence as

Helton, 782 F.3d at 155.

Accordingly, considering the totality of the circumstances,

because the facts and legal contentions are adequately presented