United States v. Ignacio Gallegos

671 F. App'x 312

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 13, 2016
• Docket: 16-50343 Summary Calendar
• Status: Unpublished

Opinion

PER CURIAM: *

Ignacio Gallegos appeals the concurrent 120-month and 240-month sentences he received for receipt and distribution of child pornography and possession of child pornography. We review preserved arguments that a sentence is substantively reasonable “under an abuse of discretion standard.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).

First, Gallegos argues the total 240-month sentence is greater than necessary because U.S.S.G. § 2G2.2 lacks an empirical basis and produced too high a guidelines range in his case due to its inclusions of enhancements that are almost inherent to the nature of child pornography offenses. Our opinion in United States v. Miller, 665 F.3d 114, 120-23 (5th Cir. 2011), forecloses these arguments. *See United States v. Duke, 788 F.3d 392, 397-98 (5th Cir. 2015) (recognizing that Miller forecloses the issue whether § 2G2.2 produces unreasonable sentences because it lacks an empirical basis).

Second, Gallegos argues that the sentence is substantively unreasonable because it treats him like a lost cause and does not reflect the mitigating factors he urged, such as his having lived a relatively isolated life, his dedication to his immediate family, and his having his family’s support. However, the district court considered Gallegos’s mitigating evidence and determined that a total 240-month term of incarceration was fair and reasonable after considering the § 3553(a) factors, the circumstances of the case, and Gallegos’s particular circumstances. Gallegos has not demonstrated that the district court abused its discretion in weighing or balancing the § 3553(a) factors. See Duke, 788 F.3d at 398.

AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.