United States of America v. Michael Bailey

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MICHAEL BAILEY,
Defendant-Appellant.
No. 16-10427
D.C. No. 2:14-cr-00207-GEB
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., District Judge, Presiding
Submitted July 11, 2017**
Before: CANBY, KOZINSKI, and HAWKINS, Circuit Judges.
Michael Bailey appeals from the district court’s judgment and challenges the
151-month sentence imposed following his guilty-plea conviction for receipt and
distribution of child pornography, in violation of 18 U.S.C. § 2252(a)(2). We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
JUL 17 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 16-10427
Bailey argues that the district court procedurally erred by failing to address
his request for a downward variance or departure under U.S.S.G. § 5H1.4 to reflect
his health problems and traumatic brain injury. We review for plain error, see
United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and
conclude that there is none. The record reflects that the district court considered
Bailey’s sentencing arguments, specifically noted his age and poor health, and
adequately explained the low-end sentence. See United States v. Carty, 520 F.3d
984, 992 (9th Cir. 2008) (en banc).
Bailey also contends that his within-Guidelines sentence is substantively
unreasonable in light of his mitigating factors and the fact that, in his view, the
Guidelines overinflate the sentencing ranges for child pornography offenses. The
district court did not abuse its discretion. See Gall v. United States, 552 U.S. 38,
51 (2007). The sentence is substantively reasonable in light of the 18 U.S.C.
§ 3553(a) factors and the totality of the circumstances, including the nature of the
videos Bailey collected and his admitted “sexting” with minor girls.
AFFIRMED.

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