United States v. Wireman, 2017 U.S. App. LEXIS 3591

Defendant Mark Anthony Wireman pleaded guilty to five counts of distributing child pornography and one count of possession under 18 U.S.C. § 2252; PSR placed him at offense level 34 and criminal-history category IV, yielding a Guidelines range of 210–262 months.
§ 2G2.2 and five specific offense characteristics produced the guideline calculations; defendant received a 3-level reduction for acceptance, yielding the above range.
Defendant sought a downward variance arguing § 2G2.2 is flawed on policy grounds (base level too harsh, lack of empirical basis, overuse of specific offense characteristics) and urged mitigation based on his abusive childhood and limited sharing.
At sentencing the district court referenced the memorandum, stated it was "struggling" with the issues, said it was considering § 3553(a) factors and the Guidelines "to some extent," and focused on the personal nature of images and defendant’s extensive sexual-offense history.
The court imposed concurrent 240-month terms (mid-Guidelines). Defendant appealed, claiming procedural unreasonableness because the district court did not explicitly address and reject his policy critique of § 2G2.2.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court procedurally erred by failing to explicitly address Wireman’s policy critiques of U.S.S.G. § 2G2.2 before imposing a within-Guidelines sentence	Wireman: district court needed to address and reject his nonfrivolous policy arguments about § 2G2.2; lacking explicit response, procedural error occurred	Government/District Court: for a within-Guidelines sentence, the court may "functionally" reject arguments by indicating it considered § 3553(a) factors and relying on the Guidelines without a point-by-point rebuttal	The Tenth Circuit affirmed: no procedural error. Plain-error review applied (defendant failed to contemporaneously object). Because the sentence was within the Guidelines and the record shows the court considered § 3553(a) factors and relied on relevant facts (criminal history, personal nature of images), the court’s functional rejection sufficed

Gall v. United States, 552 U.S. 38 (2007) (standard for procedural reasonableness and consideration of § 3553(a) factors)
Rita v. United States, 551 U.S. 338 (2007) (district court must consider parties’ arguments and normally explain rejection of nonfrivolous arguments; brevity depends on circumstances)
United States v. Ruiz-Terrazas, 477 F.3d 1196 (10th Cir. 2007) (district court may ‘‘entertain’’ arguments and functionally reject them when imposing a within-Guidelines sentence)
United States v. Martinez-Barragan, 545 F.3d 894 (10th Cir. 2008) (within-Guidelines sentence requires only a general statement showing the court considered § 3553(a))
United States v. Morrison, 771 F.3d 687 (10th Cir. 2014) (district court explicitly addressed a guideline policy critique and the court’s brief explanation was sufficient)
United States v. Grigsby, 749 F.3d 908 (10th Cir. 2014) (presumption of reasonableness for within-Guidelines sentences in this circuit)
United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010) (critique of § 2G2.2’s non-empirical provenance and its conflict with § 3553(a))
United States v. Franklin, 785 F.3d 1365 (10th Cir. 2015) (appellate presumption of reasonableness applies to sentences based on § 2G2.2 despite alleged lack of empirical support)