United States of America v. LEE ROY LANCE and DONOVAN DOTSON

* After examining the briefs and the records, we have concluded that oral argument
is unnecessary. Thus, the appeals are submitted on the briefs and the records. See FED. R.
A PP. P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 16, 2009 *
Decided September 23, 2009
Before
JOEL M. FLAUM, Circuit Judge
TERENCE T. EVANS, Circuit Judge
DIANE S. SYKES, Circuit Judge
Nos. 09‐1202 & 09‐1353
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
LEE ROY LANCE and
DONOVAN DOTSON,
Defendants‐Appellants.
Appeals from the United States District
Court for the Southern District of Illinois.
Nos. 07‐CR‐40059 & 08‐CR‐30091
J. Phil Gilbert,
Judge.
O R D E R
We have consolidated for decision these appeals because they raise the same issue:
whether a district court must disregard U.S.S.G. § 2G2.2 when imposing a sentence for a
child‐pornography conviction under 18 U.S.C. § 2252A. Lee Roy Lance pleaded guilty to
distribution and possession of child pornography, 18 U.S.C. § 2252A(a)(2)(A), (a)(5)(B), and
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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Nos. 09‐1202 & 09‐1353 Page 2
Donovan Dotson pleaded guilty to possession of child pornography, id. § 2252A(a)(5)(B).
Judge Gilbert, who presided over both cases, imposed a below‐range term of imprisonment
in each: Lance was sentenced to a total of 120 months and Dotson to 66 months. These
sentences, the defendants maintain, are unreasonable because they started with the
application of § 2G2.2.
The district court calculated Lance’s imprisonment range using a total offense level
of 34. See U.S.S.G. §§ 2G2.2, 3E1.1. That offense level, coupled with Lance’s criminal history
category of I, yielded a guidelines imprisonment range of 151 to 188 months. The court
concluded, however, that total imprisonment of 120 months, 31 months below the properly
calculated guidelines range, was reasonable when measured against the pertinent factors in
18 U.S.C. § 3553(a). For Dotson, the district court calculated a total offense level of 28, see
U.S.S.G. §§ 2G2.2, 3E1.1, which along with his criminal history category of I, yielded a
guidelines imprisonment range of 78 to 97 months. Once more, though, the court selected a
lower term after evaluating all of the § 3553(a) factors. Dotson received 66 months, 12
months below the properly calculated guidelines range.
At sentencing Lance and Dotson objected to the district court’s use of § 2G2.2. They
argued that the court should bypass the guidelines altogether because in their view the
Sentencing Commission promulgated § 2G2.2 without any empirical data to support the
imprisonment ranges that result from its application. As a consequence, the defendants
continued, any sentence that takes into account a guidelines range based on § 2G2.2 must be
unreasonable. The district court overruled this objection, explaining that it did not have the
discretion to ignore the sentencing guidelines. The defendants did not argue that the
guidelines ranges calculated by the district court were otherwise improper.
On appeal Lance and Dotson repeat their argument that § 2G2.2 is invalid and that
any sentence based on a guidelines range calculated using § 2G2.2 is per se unreasonable.
As authority for their contention that § 2G2.2 is flawed, the defendants quote language that
was initially included but later withdrawn from our opinion in United States v. Huffstatler,
561 F.3d 694, vacated, 571 F.3d 620 (7th Cir. 2009). At best, then, our revised opinion simply
acknowledges that there is support for the premise that § 2G2.2 lacks empirical support.
More importantly, however, in Huffstatler we conclusively upheld the validity of § 2G2.2 as
the starting point when sentencing for child‐pornography crimes. 571 F.3d at 624. In
Huffstatler we described the argument made by the defendants here as “untenable” and
observed that “while district courts perhaps have the freedom to sentence below the child‐
pornography guidelines based on disagreement with the guidelines, as with the crack

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Nos. 09‐1202 & 09‐1353 Page 3
guidelines, they are certainly not required to do so.” Id. at 623‐24. Indeed, we have since
added that a sentencing court is not even “required to consider . . . an argument that a
guideline is unworthy of application in any case because it was promulgated without
adequate deliberation.” United States v. Aguilar‐Huerta, 576 F.3d 365, 367‐68 (7th Cir. 2009).
In addition to their argument about § 2G2.2, both defendants also contend that the
district court failed to give proper consideration to other § 3553(a) factors besides the
guidelines range. But in each case the district court discussed the § 3553(a) factors at length
and imposed a below‐range term of imprisonment. Lance received a prison sentence 31
months below the properly calculated guidelines range, and Dotson received a term 12
months below the properly calculated guidelines range. We presume that the choice of
sentence for both defendants is reasonable, see United States v. Wallace, 531 F.3d 504, 507 (7th
Cir. 2008); United States v. George, 403 F.3d 470, 473 (7th Cir. 2005), and we are given no
reason to disturb this presumption.
The judgments in both appeals are AFFIRMED.

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