Brandon Earl Presley, a member of the Muscogee Creek Nation and an assistant high school football coach, pleaded guilty to multiple counts involving the sexual abuse of minors in Indian Country and the production and possession of child pornography. Between 2019 and 2024, Presley abused three female victims, aged 13 to 15, utilizing his position of authority to initiate contact, communicate digitally, and engage in sexual acts. The offenses included sexual abuse, abusive sexual contact, and the production of child pornography, which included a photograph taken of one victim. The probation office calculated an advisory guideline range of 262 to 327 months. The district court denied Presley's motion for a downward variance, imposing a 264-month aggregate sentence. Presley appealed, arguing the sentence was substantively unreasonable, primarily because the child pornography charge was based on a single photo that was never accessed or shared after it was taken.
The Tenth Circuit applied de novo review to legal conclusions and clear error review to factual findings, but deferred to the district court's sentencing discretion regarding the substantive reasonableness of the sentence. The court noted that because the sentence was within the advisory guideline range, it is entitled to a presumption of reasonableness. This presumption exists because the district court's decision represents a concurrence between the Sentencing Commission's 'wholesale' judgment and the court's 'retail' judgment. To overcome this presumption, the defendant must show the district court abused its discretion under 18 U.S.C. § 3553. The court emphasized that it does not reweigh the § 3553(a) factors de novo; rather, it asks whether the sentence falls within the range of rationally available choices. The district court had expressly weighed the defendant's arguments for mitigation against aggravating factors, including his use of a position of authority, influence, and trust, the vulnerability of the victims, and the repetitive nature of his conduct. The court found that the district court's sentence was not arbitrary, capricious, or manifestly unreasonable. Additionally, the court rejected the defendant's reliance on national statistics to claim sentencing disparity, explaining that such statistics do not account for differences in the specific circumstances of the defendants and thus do not establish unwarranted disparity under § 3553(a)(6).
The 264-month prison sentence stands without modification or remand. The decision reinforces the strong presumption of reasonableness for within-guideline-range sentences in the Tenth Circuit and clarifies that defendants cannot easily overcome this presumption by citing national sentencing statistics without demonstrating that the compared cases involve similarly situated defendants. It also underscores that the abuse of a position of trust and the repetitive nature of abuse against multiple minors are significant aggravating factors that can outweigh arguments regarding the specific mechanics of a single child pornography charge.
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