United States v. Kyle Tate

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 23, 2018
• Docket: 17-30080
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 23 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-30080

Plaintiff-Appellee, D.C. No. 2:16-cr-00153-RAJ

v. MEMORANDUM* KYLE J. TATE,

Defendant-Appellant.

Appeal from the United States District Court for the Western District of Washington Richard A. Jones, District Judge, Presiding

Submitted March 13, 2018**

Before: LEAVY, M. SMITH, and CHRISTEN, Circuit Judges.

Kyle J. Tate appeals from the district court’s judgment and challenges the

78-month sentence imposed following his guilty-plea conviction for possession of

visual depictions of minors engaged in sexually explicit conduct, in violation of 18

U.S.C. § 2252(a)(4)(B). We have jurisdiction under 28 U.S.C. § 1291, and we

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). affirm.

Tate contends that the district court procedurally erred by failing to consider

his policy arguments regarding the child pornography guideline. We review for

plain error, see United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir.

2010), and conclude that there is none. The record reflects that the district court

considered Tate’s policy-based arguments and found them unpersuasive. See

United States v. Henderson, 649 F.3d 955, 964 (9th Cir. 2011) (“[D]istrict courts

are not obligated to vary from the child pornography Guidelines on policy grounds

if they do not have, in fact, a policy disagreement with them.”). Moreover, Tate

has not shown a reasonable probability that he would have received a different

sentence had the court explicitly addressed his policy-based arguments. See

United States v. Dallman, 533 F.3d 755, 762 (9th Cir. 2008).

Tate also contends that his sentence is substantively unreasonable because

he had no prior offenses and was convicted of simple possession. The district

court did not abuse its discretion. See Gall v. United States, 552 U.S. 38, 51

(2007). The within-Guidelines sentence is substantively reasonable in light of the

18 U.S.C. § 3553(a) sentencing factors and the totality of the circumstances. See

Gall, 552 U.S. at 51.

AFFIRMED.

2 17-30080