Within-Guidelines Sentences Remain Presumptively Reasonable on Appeal Despite “One-Photo” Child-Pornography Enhancements
1. Introduction
In United States v. Presley (10th Cir. Apr. 23, 2026) (unpublished “Order and Judgment”),
the Tenth Circuit affirmed a within-Guidelines sentence for a defendant who pleaded guilty—without a plea agreement—to
multiple sexual-offense counts involving minors in Indian Country and to child-pornography production and possession offenses.
The central appellate issue was narrow: Presley challenged only the substantive reasonableness of his sentence,
arguing that the advisory range’s severity stemmed largely from a child-pornography production allegation involving
one photograph that he claimed was never accessed or shared. The district court denied his motion for a downward variance and
imposed a concurrent sentence totaling 264 months, within the calculated advisory range of 262 to 327 months.
2. Summary of the Opinion
The Tenth Circuit affirmed. Applying the appellate presumption of substantive reasonableness that attaches to a
within-Guidelines sentence, the panel held Presley did not rebut that presumption. The court emphasized that appellate review does not
permit reweighing the 18 U.S.C. § 3553(a) factors and that the district court’s balancing—especially considering
abuse of trust, victim vulnerability, and repeated misconduct involving multiple minors—fell within the range of rationally permissible choices.
The panel also rejected Presley’s reliance on bare national sentencing statistics to argue disparity, holding that such statistics do not
establish “unwarranted sentencing disparities” without showing the comparator cases involve similarly situated defendants.
3. Analysis
A. Precedents Cited
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United States v. McComb, 519 F.3d 1049 (10th Cir. 2007)
The opinion relies on McComb for the key appellate framework: a within-Guidelines sentence is entitled to a
presumption of reasonableness on appeal. The panel repeats McComb’s institutional justification:
where the district court’s “retail” judgment aligns with the Sentencing Commission’s “wholesale” judgment, that concurrence is
“strong evidence” the sentence is reasonable. Presley’s claim that the range was driven by a single photo was treated as a mitigation
argument, but not one sufficient to overcome the presumption.
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United States v. Angel-Guzman, 506 F.3d 1007 (10th Cir. 2007)
Cited to reinforce deference: a sentencing formula generated by a “deliberative, quasi-legislative body” and applied by a competent
district judge will “seldom require correcting.” This supports the panel’s refusal to treat Presley’s disagreement with the Guidelines’
severity as a basis for appellate intervention.
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United States v. McCrary, 43 F.4th 1239 (10th Cir. 2022)
Provides the governing substantive-reasonableness standard: the appellate court asks whether the district court’s balance of
§ 3553(a) factors was “arbitrary, capricious, whimsical, or manifestly unreasonable,” and stresses that appellate courts do not
reweigh sentencing factors de novo. This precedent frames the opinion’s decisive move: Presley was essentially requesting reweighing.
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United States v. Ruiz-Terrazas, 477 F.3d 1196 (10th Cir. 2007)
Quoted for the idea that sentencing involves a district court’s “unique familiarity” with the case and a “host of incommensurate and
disparate considerations,” justifying the broad zone of discretion and limited appellate second-guessing.
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United States v. Cortez, 139 F.4th 1146 (10th Cir. 2025)
Used to reject Presley’s statistical disparity argument. Cortez stands for the proposition that “bare national statistics”
cannot show an unwarranted disparity because they do not establish that the compared defendants are similarly situated. The panel
applied that reasoning directly: Presley did not connect the statistics to comparable conduct and circumstances.
B. Legal Reasoning
The court’s reasoning proceeds in a structured sequence:
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Identify the posture and the standard: Presley challenged only substantive reasonableness; his sentence was within the
advisory range, triggering the McComb presumption of reasonableness on appeal.
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Define what is required to win: To rebut the presumption, Presley had to show an abuse of discretion in applying
§ 3553(a)—i.e., a balance that is “arbitrary, capricious, whimsical, or manifestly unreasonable” under McCrary.
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Reject reweighing: The panel characterized Presley’s arguments (single-photo production, no criminal history,
stable lifestyle) as “colorable” but ultimately an invitation to reweigh the factors—something appellate courts do not do.
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Defer to district court’s articulated aggravators: The district court had expressly relied on:
(i) abuse of a position of authority/trust (assistant coach), (ii) multiple minor victims under 16, (iii) repeated conduct, and
(iv) victim vulnerability. With those findings, the within-range sentence remained a rational choice.
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Address disparity argument narrowly: Statistics alone did not establish disparity without comparability (Cortez).
A notable feature is what the panel did not do: it did not reassess whether the Guidelines for the production count
“overstate” culpability in “one image” scenarios as a policy matter. Instead, it treated that contention as a variance argument that the
district court considered and rejected—making the appellate question one of discretion, not optimality.
C. Impact
Although the decision is expressly nonprecedential, it is a clear application of established Tenth Circuit doctrine and
is likely to be cited persuasively for several practical propositions:
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“One-photo” mitigation is not self-executing: Even where a production offense involves a single image allegedly not
shared or revisited, appellate courts will typically treat the argument as a discretionary variance request rather than a reason to
deem a within-range sentence substantively unreasonable.
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Substantive reasonableness review remains highly deferential: The opinion reinforces that the central appellate barrier
is not whether a lower sentence might also be reasonable, but whether the sentence imposed was outside the range of rational choices.
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National sentencing statistics rarely carry the day without comparators: Defendants arguing § 3553(a)(6) disparity must
connect data to similarly situated defendants and similar conduct, not merely cite averages or medians.
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Abuse-of-trust and pattern conduct can outweigh “clean history” arguments: The district court’s emphasis on authority,
concealment, vulnerability, and repetition shows how these aggravators can dominate the § 3553(a) balance.
4. Complex Concepts Simplified
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“Substantive reasonableness”: A challenge to the length of the sentence (as opposed to procedure). The question
is whether the sentence is within the bounds of reason given the statutory factors in § 3553(a).
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“Within-Guidelines” sentence: A sentence that falls inside the advisory range calculated under the U.S. Sentencing
Guidelines. In the Tenth Circuit, this receives a presumption of reasonableness on appeal.
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“Downward variance”: A sentence below the Guidelines range based on the judge’s assessment of § 3553(a) factors.
(Different from a “departure,” which is a Guidelines-authorized adjustment.)
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“Presumption of reasonableness” (on appeal): Not a rule binding the district court; rather, an appellate shortcut:
the appellant must affirmatively show why the within-range sentence is unreasonable.
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§ 3553(a)(6) “unwarranted disparities”: The law aims to avoid different sentences for truly comparable defendants.
Averages and medians do not prove disparity unless the compared cases match in relevant ways (conduct, victims, aggravators, etc.).
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“Indian Country” jurisdiction references (18 U.S.C. §§ 1151, 1153): These statutes define Indian Country and extend
federal criminal jurisdiction over certain crimes involving Indians and occurring in Indian Country.
Note: the opinion’s footnote contains what appear to be typographical errors in statutory citations (e.g., “§ 3353(a)” and “§ 3353(a)(6)”);
context indicates the court is discussing 18 U.S.C. § 3553(a) and § 3553(a)(6).
5. Conclusion
United States v. Presley reinforces a durable Tenth Circuit sentencing principle: when a district court imposes a
within-Guidelines sentence and explains its § 3553(a) balancing, the sentence is presumptively reasonable on appeal and will be upheld
absent a clear abuse of discretion. Mitigation narratives—here, that a harsh range was driven by “one photo,” never shared or revisited,
coupled with a lack of criminal history—may be “colorable,” but they do not authorize appellate courts to reweigh the sentencing factors.
The decision also underscores that § 3553(a)(6) disparity arguments require true comparability, not bare national statistics.