February 12, 2016
FROM UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF
MISSOURI - KANSAS CITY.
United States of America, Plaintiff - Appellee: David Luna,
Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, Kansas
Richard Alan Sigsbury, Defendant - Appellant: Robert Kuchar,
Rebecca L. Kurz, FEDERAL PUBLIC DEFENDER'S OFFICE, Kansas
Alan Sigsbury, Defendant - Appellant, Pro se, Oakdale, LA.
LOKEN, ARNOLD, and BENTON, Circuit Judges.
BENTON, Circuit Judge.
Alan Sigsbury pled guilty to four counts of distributing
child pornography over the internet, four counts of
advertising child pornography over the internet, possessing
child pornography, and possessing child obscenity.
See 18 U.S.C. § § 2252(a)(2), 2251(d),
2252(a)(4), 1466A(b). Based on the sentencing guidelines
range of 210 to 262 months, the district court sentenced
Sigsbury to 262 months' imprisonment. He appeals the
substantive reasonableness of his sentence. Having
jurisdiction under 28 U.S.C. § 1291, this court affirms.
asserts no procedural error in calculating the guidelines.
Instead, relying on a Sentencing Commission report, he argues
that the " guideline for trafficking in child
pornography, U.S.S.G. § 2G2.2, is the product of
arbitrary legislation by Congress, rather than the careful
research and study of the Sentencing Commission."
See United States Sentencing Comm'n, Report
to Congress: Federal Child Pornography Offenses (Dec.
court reviews the reasonableness of a sentence for abuse of
discretion. United States v. Jenkins, 758 F.3d 1046,
1050 (8th Cir. 2014). " A district court abuses its
discretion when it (1) fails to consider a relevant factor
that should have received significant weight; (2) gives
significant weight to an improper or irrelevant factor; or
(3) considers only the appropriate factors but in weighing
those factors commits a clear error of judgment."
United States v. Feemster, 572 F.3d 455, 461 (8th
Cir. 2009) (en banc) (internal quotations omitted). " If
the defendant's sentence is within the Guidelines range,
then we 'may, but [are] not required to, apply a
presumption of reasonableness.'" Id.,
quoting Gall v. United States, 552 U.S. 38, 51, 128
S.Ct. 586, 169 L.Ed.2d 445 (2007).
district court properly considered the § 3553(a) factors
in determining Sigsbury's sentence. See 18
U.S.C. § 3553(a). The court found that the nature and
circumstances of the offenses were " extensive and
devastating" -- Sigsbury possessed over 500,000 images
and more than 600 videos of young boys engaged in sexually
explicit conduct. The court also considered Sigsbury's
admissions about his sexual attraction to young boys living
near him and his uncharged sexual contact with several other
young boys. The court told Sigsbury " you obviously have
not been able to control or deal with your impulses" and
" the other instances of contact as reflected in the
government's sentencing memorandum that you attempt to
make some purported explanation for just is not
credible." The court found " a real and compelling
need to protect the public" from Sigsbury. The court
heard Sigsbury's argument about the "
exaggerated" nature of the child pornography guidelines,
yet sentenced him at the top of the range. See, e.g.,
United States v. Cubero, 754 F.3d 888, 900 (11th Cir.
2014) (" While a district court may certainly consider
the 2013 report in choosing the ultimate sentence, the report
does not invalidate § 2G2.2. And, the district
court's use of § 2G2.2 as an advisory guideline does
not render [defendant's] sentence procedurally or
substantively unreasonable." ); United States v.
Grigsby, 749 F.3d 908, 911 (10th Cir. 2014) ("
[T]his does not mean a within-guideline-range sentence based
on a guideline lacking an empirical basis is necessarily
unreasonable, and none
of our sister circuits have ever so held. We agree with the
Fifth Circuit that Congress and the Commission are
responsible for altering the Guidelines." ); United
States v. McLaughlin, 760 F.3d 699, 707 (7th Cir. 2014)
(" Congress and the Commission are responsible for
altering the guidelines, and the absence of an empirical
basis does not render a guidelines provision per se