Case Information
*2 S RINIVASAN , Circuit Judge
: Daniel Fry pleaded guilty to one count of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). On appeal, Fry raises procedural and substantive challenges to the sentence imposed against him by the district court. His arguments principally revolve around the proposition that the district court, for policy-based reasons, should have varied from the Sentencing Guidelines provisions addressing child-pornography offenses. We reject Fry’s arguments and affirm the sentence imposed by the district court.
I. On June 11, 2014, Fry met an undercover agent on a social-networking site after Fry had posted several links to child pornography on the sitе’s public chat room. On June 24, 2014, Fry contacted the undercover agent, who was posing as the father of an eight-year-old girl. During their conversation, Fry offered to send the agent forty videos of child pornography in exchange for watching (via webcam) the agent sexually abuse the purported eight-year-old child. Fry then sent the agent several images and videos containing child pornography. Many of the images and videos depicted prepubescent females engaging in sex acts with adults and other prepubescent children.
Officers arrested Fry and executed a search warrant at his home. During the search, the officers recovered over 600 images of child pornography. The images included depictions of prepubescent children engaged in sadomasochistic sex acts.
Fry pleaded guilty to one count of possession of child pornography. As part of his plea agreement, Fry agreed to the applicability of certain enhancements under the Sentencing Guidelines because his child-pornography offense involvеd: *3 material with a prepubescent minor or minor under twelve, U.S.S.G. § 2G2.2(b)(2), distribution of material, id. § 2G2.2(b)(3)(F), portrayal of sadistic or masochistic conduct, id. § 2G2.2(b)(4), use of a computer, id. § 2G2.2(b)(6), and 600 or more images, id. § 2G2.2(b)(7)(D). Fry also agreed that his estimated Sentencing Guidelines range was 97 to 121 months and that a sentence within that range would be reasonable.
The district court sentenced Fry to 108 months of imprisonment, to be followed by 120 months of supervised release. Fry now appeals his sentence.
II.
Fry raises both procedural and substantive challenges to
his sentence. The government contends as a threshold matter
that we should decline to address Fry’s arguments because, as
part of his plea agreement, he waived the right tо appeal any
sentence within the Guidelines range. Fry responds that his
appeal waiver should not be enforced because the district court
mischaracterized the waiver in a colloquy with Fry in his plea
hеaring.
See United States v. Godoy
, 706 F.3d 493, 495-96
(D.C. Cir. 2013). We have no need to resolve whether Fry
waived his right to appeal his sentence. Because the waiver
question does not go to our court’s jurisdiction, we can forgo
deciding it if we reject Fry’s sentenсing challenges on the
merits, which we do here for reasons we now explain.
See
United States v. Shemirani
,
A.
We first address Fry’s claim that the district court
procedurally erred in imposing his sentence. Because Fry
failed to raise his procedurаl objections in the district court, we
review the claims for plain error.
See United States v. Melgar-
*4
Hernandez
, 832 F.3d 261, 266 (D.C. Cir. 2016). To prevail
under the plain-error standard, Fry must show that the district
court made a “(1) legal error that (2) was plain, (3) affected the
defendant’s ‘substantial rights,’ and (4) seriously affected the
‘fairness, integrity or public reputation of the judicial
proceedings.’”
United States v. Head
,
Fry initially contends that the district court failed to give
adequate consideration to the sentencing factors sеt out in 18
U.S.C. § 3553(a). That provision calls for a sentencing court
to consider certain factors, including the nature and
circumstances of the offense, the defendant’s history, the
seriousness of the offense, the need tо deter criminal conduct
and protect the public from further crimes, the sentencing
range, and the interest in avoiding unwarranted sentence
disparities among similarly situated defendants. A district
court, however, “need not consider every § 3553(a) factor in
every case.”
In re Sealed Case
,
The district court gave adequate consideration to those factors here. The court explained that it viewed the offense conduct to be particularly serious because Fry offered to give the undercover agent pornographic materials if the agent would allow Fry to watch the agent sexually abuse a child victim. The case therefore involved “more than possession. We have bartering.” Sentencing Hr’g Tr. at 5. The bartering, the district court emphasized, was especially troubling because it would have created “a new victim.” Id. at 23. The court repeatedly highlighted the serious nature of Fry’s conduct and explained that the sentence would deter Fry and “others who may be inclined in doing similar kinds of things.” at 25. The court thus determined that the sentence was “fair and just” and *5 “reflects the seriousnеss of the offense.” Those statements demonstrate the court’s consideration of the pertinent sentencing factors.
Fry’s next procedural challenge contends that the district
court gave inadequate consideration to his policy-based
argument for a sentence below the Guidelines range. His
argument was that the Guidelines for child-pornography
offenses should be disregarded because they give rise to
sentencing enhancements in too great a share of child-
pornography cases. We address the substance of that argument
below, but with regard to Fry’s contention that the district court
gave it insufficient consideration, a distriсt court, we have
explained, must “provide a ‘reasoned basis’ for its decision and
consider all ‘nonfrivolous reasons’ asserted for an alternative
sentence” at the time of sentencing.
United States v. Locke
,
664 F.3d 353, 357 (D.C. Cir. 2011) (quoting
Rita v. United
States
,
Those standards are satisfied here. The district court stated that it had “taken into consideration” the arguments made by Fry’s counsel in deciding against giving Fry a sentence at the upper end of the Guidelines range. Sentencing Hr’g Tr. at 25. When Fry’s counsel raised cоncerns about certain of the Guidelines enhancements for child-pornography offenses, the district court explained that, even absent those enhancements, the serious nature of Fry’s conduct remained. The court later affirmatively acknowledged that it had heard Fry’s argument and had also read Fry’s pleadings on the point. The record thus confirms that the district court considered Fry’s arguments for a sentence below the Guidelines range.
In short, Fry fails to identify any procedural error, let alone plain error, committed by the district court in imposing his sentence.
B.
We turn next to Fry’s argument that the sentence imposed by the district court was substantively unreasonable. “[W]e review claims of substantive unreasonableness for abuse of discretion, regardless of whether an objection on those terms was made” at sentencing. United States v. Russell , 600 F.3d 631, 633 (D.C. Cir. 2010). The 108-month sentence imposed by the district court was within the Guidelines range and is thus presumptively reasonable. See id. at 634. In fact, Fry expressly conceded in his plea agreement that a sentence within that range would be reasonable.
Fry claims that the sеntence nevertheless was unreasonable and the district court should have varied downward because the child-pornography Guidelines, U.S.S.G. § 2G2.2, are based on congressional mandates rather than empirical studies. Fry notes that district courts have discretion to vary from the Guidelines for crack-cocaine offenses “based on a policy disagreement with those Guidelines.” Fry Br. 12 (quoting Spears v. United States , 555 U.S. 261, 266 (2009)). He claims the child-pornography Guidelines contain largely the same flaws as the crack-cocaine Guidelines and thus require the same treatment. Specifically, Fry highlights that many of the enhancements listed in section 2G2.2 apply to ordinary offenders, giving risе to disproportionately severe sentences even for “run-of-the-mill” cases. at 11-12 (quoting United States v. Dorvee , 616 F.3d 174, 186 (2d Cir. 2010)). In support of his argument, Fry presented evidence through which he sought to show that his enhancements for images involving preрubescent minors, for *7 the number of images, for use of a computer, and for sadomasochistic images applied in the vast majority of cases. As a result, Fry contends, the district court should have varied downward from thе child-pornography Guidelines.
None of Fry’s arguments, however, supports the
conclusion that a district court’s decision to
agree
with the
Guidelines constitutes an abuse of discretion. It is true that
several courts of appeals have allowed district courts to vary
downward from the child-pornography Guidelines based on
policy disagreements with those Guidelines.
See United States
v. Henderson
,
Here, the district court’s statements at sentencing evidence the judge’s аgreement with the policy behind the Guidelines. The court recognized that it could vary outside the Guidelines range. The court emphasized, however, that the children in child-pornography videos are “true victims” whose “viсtimization follows them the rest of their lives,” which, to the court, was “the reason why, in a nutshell, Congress has set these very serious, and sometimes, you could even argue, severe sentences for these types of actiоns here.” Sentencing Hr’g Tr. at 24. The court thus excercised its discretion to agree *8 with the policy behind the Guidelines, stating, “I must give a sentence that reflects the seriousness of the conduct; a Guideline Range sentence does that.” The court also explained that, even absent the Guidelines enhancements, the “very serious” nature of Fry’s conduct remained a central consideration in its analysis. See id. at 12-13. In particular, as noted above, Fry was “bartering . . . for a new victim to be created.” See id. at 23.
The district court could reasonably conclude that the sentence reflected “the seriousness of the conduct” and would protect the public by dеterring Fry and “others who may be inclined in doing similar kinds of things.” See id. at 24-25. Fry has thus failed to show that the district court abused its discretion in imposing a sentence in the middle of the Guidelines range.
* * * * *
For the foregoing reasons, we affirm the district court’s judgment.
So ordered.