United States of America v. Michael William Sherman

United States Court of Appeals
For the Eighth Circuit
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No. 12-2847
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Michael William Sherman
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: November 27, 2012
Filed: December 4, 2012
[Unpublished]
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Before MURPHY, ARNOLD, and SMITH, Circuit Judges.
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PER CURIAM.
Michael Sherman pleaded guilty to producing child pornography, in violation
of 18 U.S.C. § 2251(a) and (e). The presentence report calculated a Guidelines sentence

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of 360 months in prison, the statutory maximum. The district court 1 varied downward,
imposing a 300-month prison term.
On appeal, Sherman argues that the sentence is substantively unreasonable
because the Guidelines, as applied to child pornography cases, lack an empirical basis
upon which to formulate an appropriate sentence under 18 U.S.C. § 3553(a). This
court has already rejected such an argument. See, e.g., United States v. Jones, 563
F.3d 725, 730 (8th Cir. 2009) (assuming sentencing court may disregard child-
pornography Guidelines on policy grounds does not mean court must disagree with
Guidelines, whether it reflects policy judgment of Congress or Commission’s
“characteristic” empirical approach).
We conclude that the sentence is not unreasonable. See United States v. Moore,
581 F.3d 681, 684 (8th Cir. 2009) (per curiam) (where district court has sentenced
defendant below advisory Guidelines range, it is nearly inconceivable that court
abused its discretion in not varying downward further). Accordingly, we affirm.
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1The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.
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