                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4153


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JUSTIN NICHOLAS GUERRA,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.    Terry L. Wooten, Chief District
Judge. (4:12-cr-00176-TLW-1)


Submitted:   May 22, 2013                     Decided:   July 5, 2013


Before MOTZ, GREGORY, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


William F. Nettles, IV, Assistant Federal Public Defender,
Kimberly H. Albro, Research and Writing Specialist, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for
Appellant.   William N. Nettles, United States Attorney, Jimmie
Ewing, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Pursuant     to   a    guilty   plea,     a        federal    district      court

convicted     Justin     Nicholas     Guerra        of     possession      of     child

pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).                             The

district court applied six sentence enhancements set forth in

the   presentence       investigation        report       (“PSR”),     raising      the

applicable Federal Sentencing Guidelines range to 188 to 235

months in prison.        The district court recognized, however, that

the   maximum    term   of    imprisonment      was       limited    by    18   U.S.C.

§ 2252(b)(2) to 120 months.           After considering the arguments of

counsel, the district court sentenced Guerra to the statutory

maximum term.

      Guerra challenges his sentence, arguing that the district

court abused its discretion by imposing a sentence that is both

procedurally and substantively unreasonable.                  We affirm.



                                       I.

                                       A.

      In 2011, an undercover FBI agent signed on to a peer-to-

peer file sharing program and discovered approximately eighty-

five files of child pornography on the network of a user later

identified to be Guerra.          The FBI obtained a warrant to search

Guerra’s    home   in    Myrtle     Beach,    South        Carolina,      where   they



                                        2
located and seized a computer with images matching those found

on the file sharing program.

      Guerra’s         computer        contained          1,816        pornographic         images

involving adult males with prepubescent boys, adult males with

infants,    and       prepubescent          boys    with       other    prepubescent         boys.

Many of the photographs involved sadistic conduct, showing young

children     in       bondage.         The     file       names        were      graphic,    many

describing       the      sexual      conduct       and    the     age      of    the    children

involved.         After     speaking         with    the       FBI,    Guerra      admitted    to

possessing       child     pornography,            and    to    using       the    peer-to-peer

sharing network for the purpose of trading child pornography.

                                               B.

      In   his     plea     agreement,        Guerra       agreed        to      six   conditions

regarding the application of the Federal Sentencing Guidelines.

First, that § 2G2.2(a)(1) would apply with a base offense level

of 18.      Second, that a two-level enhancement would be applied

pursuant     to       §    2G2.2(b)(2)          because         the      material       involved

prepubescent minors.             Third, that a five-level enhancement would

be   applied      pursuant       to    §    2G2.2(b)(3)(B)            for     distribution      of

pornography.           Fourth, that a four-level enhancement would be

applied pursuant to § 2G2.2(b)(4) because the material portrayed

conduct    of     a    sadistic       or     masochistic          nature.          Fifth,    that

another two-level enhancement would be applied pursuant to §

2G2.2(b)(5)       because      the         offense       involved       a     computer.        And

                                                3
finally, that a five-level enhancement would also be applied

pursuant to § 2G2.2(b)(7)(D) because the offense involved more

than six-hundred images of pornography.                      Guerra’s total offense

level, as calculated pursuant to the agreement, was 36.

      The district court adopted the conclusions set forth in the

PSR   and      calculated     a    Guidelines      range     of   188-235   months    in

prison.         The   district       court,       however,    recognized    that     the

maximum term of imprisonment for a violation of § 2252A(a)(5)(B)

was limited to 120 months under 18 U.S.C. § 2252(b)(2) & USSG §

5G1.1(a).

        Guerra moved for a downward variance.                     In support of his

motion, he filed a sentencing memorandum that raised two issues:

(1)     the    policy    disagreements        over     the    application    of    USSG

§ 2G2.2; and (2) the individual application of the 18 U.S.C.

§ 3553(a) factors to his case.

        At the sentencing hearing, Guerra’s parents and a counselor

from his substance abuse program testified regarding Guerra’s

character and history of sexual abuse.                       At the conclusion of

Guerra’s       presentation,        the   district      court      acknowledged      the

§ 3553(a) factors and explained how they applied to Guerra’s

case.         Focusing   on   the    seriousness       of    Guerra’s   conduct,     the

district court denied Guerra’s motion and sentenced him to 120

months’ imprisonment.             He timely appeals.



                                              4
                                         II.

      We review the district court’s sentence under an abuse-of-

discretion    standard,      regardless         of    whether     that   sentence    is

inside or outside the Guidelines range.                   Gall v. United States,

552 U.S. 38, 49 (2007).            The Supreme Court has admonished that

our review of a district court’s sentencing decision is limited

to   the   determination      of    whether      the    sentence    is     reasonable.

United States v. Booker, 543 U.S. 220, 224                    (2005).

      Our review of Guerra’s sentence for reasonableness entails

a two-step analysis.           Gall, 552 U.S. at 51.                First, we must

ensure     that   the   district         court        committed     no     significant

procedural    error.        Id.    at   50.      In    assessing     the    procedural

reasonableness    of    a    sentence--whether          the     district    court    has

properly applied the Guidelines--we review factual findings for

clear error and legal conclusions de novo.                        United States v.

Llamas, 599 F.3d 381, 387 (4th Cir. 2010).                         If the district

court’s    sentencing       decision     is     procedurally       sound,     we    then

examine the substantive reasonableness of the sentence amongst

the totality of the circumstances.                   Id. at 51.     Gall permits us

to apply a presumption of reasonableness if the sentence imposed

is within the Guidelines range. Id.



                                         III.

                                          A.

                                          5
      Our initial inquiry of procedural reasonableness focuses on

whether   the        district    court     (1)     correctly      calculated       the

applicable Guidelines range; (2) considered the factors under

§   3553(a)    and    determined       whether    they   supported        the   chosen

sentence; (3) made an individualized assessment based on the

facts; and (4) adequately explained the chosen sentence to allow

for meaningful appellate review.               Gall, 552 U.S. at 49-50.

      Guerra     argues         that     his     sentence        is      procedurally

unreasonable for three reasons: (1) the district court did not

properly consider the § 3553(a) factors; (2) the district court

relied on an incorrect Guidelines range; and (3) the district

court did not adequately explain his sentence.                   We consider each

contention in turn.

                                          1.

      Guerra contends that the district court failed to properly

apply the § 3553(a) factors to his case in two ways.                       First, he

argues that the court made “sweeping generalizations” regarding

his    conduct        that      are     insufficient        to        constitute    an

individualized assessment under Gall.                Second, he contends that

the only determinations made that were specific to his conduct

weighed in his favor.            The government responds that the court

properly addressed all of the § 3553(a) factors and that the

nature and seriousness of Guerra’s conduct weighed against a

downward variance.

                                          6
       We reject Guerra’s arguments.                  We have previously held that

a    district     court      is     not    required         to     provide      a     lengthy

explanation of all the factors under § 3553(a).                            United States

v. Susi, 674 F.3d 278, 289 (4th Cir. 2012).                        And as we have many

times explained, the court need not “robotically tick through

§    3553(a)’s     every       subsection”           to     conduct       an    individual

assessment.       United States v. Carter, 564 F.3d 325, 329 (4th

Cir. 2009).

       In this case, the district court highlighted the nature and

seriousness      of    Guerra’s       conduct,         referencing        paragraphs       10

through 22 of the PSR.            J.A. 199.          Based on the number of images

recovered--“some        1,816”—and        the      graphic    nature      of    the    sexual

violence portrayed in those images, the court concluded that

Guerra may pose a risk to society.                        J.A. 202.       The court also

noted   that     people      need    to    be       deterred      from     viewing      child

pornography because it promotes the abuse of children.                                   J.A.

198.      While       the    district      court       acknowledged        that       certain

mitigating      factors      weighed      in       Guerra’s      favor,    it   ultimately

concluded that the fact that Guerra “made [child pornography]

available to others” weighed against a variance.                          J.A. 199.

       Because the district court acted well within its discretion

in   determining       the    weight      given       to   each     of    the   §     3553(a)

factors, we conclude that the district court’s explanation of



                                               7
Guerra’s     sentence         was         sufficient          to         constitute       an

“individualized assessment” under Gall.                  552 U.S. at 51.

                                            2.

       Next, Guerra argues that the district court relied on an

incorrect    Guidelines      range     in       determining        his    sentence.       He

contends that the district court improperly considered what the

Guidelines range would have been but for the statutory maximum

when    assessing     the     appropriate          sentence.             The    government

responds that the district court properly determined that the

statutory maximum sentence was the Guidelines sentence, not a

variance    sentence,      and   that,      any    challenge        to    the    120-month

sentencing guideline should be reviewed for plain error because

Guerra did not object at the hearing.

       We agree with the government.                USSG § 5G1.1(a) instructs a

district court to apply the statutory maximum sentence if the

maximum    sentence       allowed    by     statute      is   less       than    what    the

Guidelines range otherwise would have been. United States v.

Carr, 395 F. App’x 983, 987 (4th Cir. 2010) (unpublished).

       Applying   the      enhancements          recommended        in    the    PSR,    the

district court observed that the applicable Guidelines range was

188-235 months in prison.             The district court acknowledged that

the statutory range was limited to 120 months under 18 U.S.C.

§   2252(b)(2)      and     applied       USSG     §   5G1.1(a)--noting           that     a

statutory    maximum      sentence     would       not   be    a     variance,      but    a

                                            8
Guidelines        sentence. 1           Consequently,        Guerra’s       argument     fails

under      both     the    abuse-of-discretion             and     plain    error    standards

because he has not shown that the court considered the higher

Guidelines range to be an aggravating factor in its sentencing

decision.

                                                3.

        Lastly,      Guerra      argues       that   the     district       court    committed

procedural error by failing to adequately explain its sentence.

First,       he     contends      that    the     court      “reiterated       the    generic

enhancements” and failed to individually assess the § 3553(a)

factors      based        on    the    record.           Second,    he     argues    that   the

district      court       did    not    provide      a    written     explanation      of   the

sentence in the statement of reasons.                            The government asserts

that       Guerra    has       failed    to    satisfy      his     burden    to     show   the

inadequacy of the court’s explanation, and that alternatively,

any error was harmless.

        We find first that the district court adequately assessed

the § 3553(a) factors.                  “Where a matter is conceptually simple

and the record makes clear that the district court considered

the evidence and arguments, the law does not require the court

       1
       Guerra’s reference to U.S. v. Dorvee, 616 F.3d 174, 180
(2nd Cir. 2010) is not dispositive. We find Dorvee to be
distinguishable because, unlike the present case, the district
court there improperly treated the higher guidelines sentence
“as though it were the benchmark for any variance.” Id. at 181.



                                                 9
to write more extensively.”                     Rita v. United States, 551 U.S.

338, 359 (2007).           Instead, our cases only require a district

court to       provide    some    indication          that   it   considered        (1)     the

§ 3553(a) factors with respect to the defendant; and (2) the

meritorious      arguments       raised         by   both   parties   as    to     a   proper

sentence.       United States v. Montes-Pineda, 445 F.3d 375, 380

(4th Cir. 2006).

     In our view, Guerra’s argument that the court “reiterated

the generic enhancements” misses the mark because he fails to

point    out    which     of   the    §    3553(a)      factors   the      court       applied

generally      so    as   to   make       his    sentence    unreasonable.             To   the

contrary, the record shows that the district court based its

sentence on facts specific to Guerra’s conduct.

     We also find that the district court’s failure to provide a

written explanation of Guerra’s sentence in the statement of

reasons is harmless error.                  In that regard, we agree with the

reasoning of our sister circuits that have reached this same

conclusion.         See, e.g., United States v. Mendoza, 543 F.2d 1186,

1196 (10th Cir. 2008) (holding that failure to provide a written

statement is harmless error when the district court gives an

adequate verbal explanation of its reasons for the sentence). 2



     2
       See also, United States v. Jennings, 407 F. App’x 20, 21
(6th Cir. 2011)(unpublished); United States v. Jones, 509 F.3d
(Continued)
                                                10
                                           B.

    In     light      of   our       conclusion    that       the    district   court’s

sentencing decision is procedurally sound, [we] now “consider

the substantive reasonableness of the sentence . . . amongst the

totality of the circumstances.”                   Gall, 552 U.S. at 51.              Gall

permits    us    to   apply      a   presumption       of    reasonableness     if    the

sentence is within the Guidelines range, and the fact that we

might     reasonably       have        imposed     a        different    sentence      is

insufficient to justify reversal.                Id.

    Guerra        argues      that        his     sentence          is   substantively

unreasonable for two reasons: (1) the district court did not

address the policy issues raised in his Sentencing Memorandum;

and (2)    the    district       court    relied       on    an   improper   sentencing

factor.    We disagree.

                                           1.

    Guerra argues that the district court failed to consider

the policy arguments he presented in determining his sentence.

Specifically, he contends the court did not address: (1) the

“widespread concerns” with the application of USSG § 2G2.2; (2)

cases similar to Guerra’s where variances were applied; and (3)




911, 916 (8th Cir. 2007); United States v. Thomas, 313 F. App’x
280, 283 (11th Cir. 2009) (per curiam).



                                           11
why   Guerra’s   own    sexual   abuse      was   or   was   not   a     factor   in

sentencing.

      We believe the record establishes that the district court

properly considered the policy issues raised by Guerra.                       First,

the record shows that the court engaged in a discussion with

Guerra’s    counsel    regarding     the    application      of   USSG    §   2G2.2.

After Guerra argued that the § 2G2.2 enhancement was “dictated

by fiat,” the district court noted that “Congress holds hearings

and reviews a lot of information before they send something to

the commission.”       J.A. 171-174.

      Second, the district court was unable to determine whether

Guerra’s sentence imposed an unwarranted disparity because it

did not have before it sufficient relevant information.                       At the

hearing,    Guerra     failed   to   offer   any   statistics      or     case    law

regarding the application of § 2G2.2 within this circuit.                         The

district court also concluded that the cases Guerra offered were

not helpful to its determination, stating that “without knowing

the specifics . . . the information could not be meaningfully

used.”     J.A. 207.

      Third, the district court did in fact consider Guerra’s

history of sexual abuse as a mitigating factor, albeit with a

tinge of irony given Guerra’s offense.                 Unpersuaded, the court

explained its view that, “such a personal history should cause



                                       12
an individual not to involve themselves in images that promote

the production of child pornography.”                   J.A. 206.

       We   find    no    abuse   of     discretion      in    the   district    court’s

disposition of Guerra’s policy arguments.

                                                 2.

       Finally, Guerra contends that his sentence is substantively

unreasonable because the district court relied on an improper

factor when imposing sentence.                   Specifically, he asserts that

the court considered the need for rehabilitation as a sentencing

factor in violation of 18 U.S.C. § 3582(a), when it briefly

expressed     its    hope     that      “[Guerra]       would    get    treatment      for

matters that happened to him before [his involvement] with child

pronography.”       J.A. 210.        The government responds that the basis

for    Guerra’s     sentence      was    the    nature    and    seriousness     of    his

conduct,     not    the    need    for    rehabilitation,        and    that,    because

Guerra failed to object to the court’s remark, his challenge

should be reviewed for plain error.

       We   review        Guerra’s       challenge       for    plain    error    as     a

consequence of his failure to object.                      Thus, Guerra bears the

burden of establishing (1) that the district court erred; (2)

that the error was “plain”; and (3) that the error affected the

outcome of the proceeding.                 United States v. Olano, 507 U.S.

725,    734-35     (1993).        While    we    have    discretion     to   correct     a

forfeited error, we should not do so unless the error “seriously

                                            13
affect[s]      the     fairness,         integrity       or     public    reputation      of

judicial proceedings.”              Id. at 732.          In our view, Guerra cannot

show error because the record establishes that his sentence was

not imposed or lengthened to promote his rehabilitation.

       We are satisfied that the district court based its sentence

on the nature and seriousness of Guerra’s conduct.                                The court

found       that     Guerra       possessed        and    distributed       1,816     child

pornography images involving children under the age of twelve

years   old,       some    of    which    portrayed       acts    of   sexual     violence.

Because the topic of rehabilitation was raised only after the

court denied Guerra’s motion for a downward variance, we find

that    the    length      or     imposition       of    Guerra’s      sentence    was   not

premised upon a motive or intention that Guerra would receive

rehabilitative treatment.

       In    sum,    we    are    not    persuaded       that    Guerra’s    sentence     is

substantively unreasonable.



                                             IV.

       For the foregoing reasons, we affirm the judgment of the

district      court.        We    dispense     with      oral    argument    because     the

facts   and        legal   contentions       are     adequately        presented    in   the

material      before       this    court    and     arugment      would     not    aid   the

decisional process.

                                                                                   AFFIRMED

                                              14
