United States of America v. Kyle J. Tate

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KYLE J. TATE,
Defendant-Appellant.
No. 17-30080
D.C. No. 2:16-cr-00153-RAJ
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Submitted March 13, 2018**
Before: LEAVY, M. SMITH, and CHRISTEN, Circuit Judges.
Kyle J. Tate appeals from the district court’s judgment and challenges the
78-month sentence imposed following his guilty-plea conviction for possession of
visual depictions of minors engaged in sexually explicit conduct, in violation of 18
U.S.C. § 2252(a)(4)(B). We have jurisdiction under 28 U.S.C. § 1291, and we
* 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
MAR 23 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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affirm.
Tate contends that the district court procedurally erred by failing to consider
his policy arguments regarding the child pornography guideline. 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 Tate’s policy-based arguments and found them unpersuasive. See
United States v. Henderson, 649 F.3d 955, 964 (9th Cir. 2011) (“[D]istrict courts
are not obligated to vary from the child pornography Guidelines on policy grounds
if they do not have, in fact, a policy disagreement with them.”). Moreover, Tate
has not shown a reasonable probability that he would have received a different
sentence had the court explicitly addressed his policy-based arguments. See
United States v. Dallman, 533 F.3d 755, 762 (9th Cir. 2008).
Tate also contends that his sentence is substantively unreasonable because
he had no prior offenses and was convicted of simple possession. The district
court did not abuse its discretion. See Gall v. United States, 552 U.S. 38, 51
(2007). The within-Guidelines sentence is substantively reasonable in light of the
18 U.S.C. § 3553(a) sentencing factors and the totality of the circumstances. See
Gall, 552 U.S. at 51.
AFFIRMED.

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