Appeal from the United States District Court for the Northern District of Iowa.
The opinion of the court was delivered by: Shepherd, Circuit Judge.
Submitted: September 20, 2011
Before WOLLMAN, BYE, and SHEPHERD, Circuit Judges.
Travis Nissen pled guilty to possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). The district court*fn1 sentenced him to 120 months imprisonment. Nissen appeals his sentence, arguing that the court erred in assessing a Sentencing Guidelines enhancement for the number of images he possessed and that the court sentenced him improperly by failing to specifically identify the factors it considered at sentencing. We affirm.
On January 23, 2009, a search warrant was executed at Nissen's residence, and Nissen's computer was seized and taken to a forensic examiner. According to the presentence investigation report (PSR), the forensic examiner's report*fn2 determined that the computer hard drive contained approximately 123 visual depictions of persons suspected to be under the age of eighteen engaged in sex acts or displaying genitalia. On April 2, 2010, Nissen was charged with knowingly possessing child pornography (Count 1) and knowingly accessing with intent to view child pornography (Count 2), both in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). Nissen pled guilty to Count 1 before a magistrate judge and the district court accepted Nissen's guilty plea.
A United States Probation Officer prepared a PSR for Nissen, calculating a base offense level of 18 under United States Sentencing Commission, Guidelines Manual, §2G2.2. The PSR categorized the 123 visual depictions of child pornography analyzed by the forensic examiner as 39 images, 83 thumbnail images from a Windows Movie Maker data file, and 1 video. The PSR explained that Windows Movie Maker is a video editing program that creates a data file containing thumbnail images from videos that are viewed and edited inside the program. The PSR noted the Government's position that the thumbnail images came from approximately 40 to 50 different videos that were deleted from Nissen's hard drive before it was seized. The PSR also noted that phone records from January 23, 2009, showed that Nissen and his wife had several conversations after she was interviewed by law enforcement and before the search warrant was executed that same day. According to the PSR, the forensic examination indicated that the videos were deleted "within hours" of the search. The PSR concluded that "based on a preponderance of the evidence, the defendant possessed at least eight videos" and that Nissen possessed more than the 600 images required for a five-level increase under USSG §2G2.2(b)(7)(D).*fn3
The PSR also recommended three separate two-level increases because the child pornography in Nissen's possession involved a prepubescent minor, portrayed sadistic or masochistic conduct, and involved the use of a computer. See USSG §2G2.2(b)(2), (4), and (6). The PSR took into account a three-level reduction for Nissen's acceptance of responsibility under USSG §3E1.1(a) and (b). This left Nissen with a total offense level of 28. Nissen was assessed five criminal history points, giving him a Category III criminal history. The Guidelines recommended a range of 97 to 121 months imprisonment, but because of the statutory maximum, the possible sentence was capped at 120 months.
After reviewing the PSR, Nissen submitted various objections--including general objections to the enhancements--but did not object to any part of the factual information regarding the number of images. At the sentencing hearing, Nissen also objected to the Guidelines calculation, but his objections were limited to general arguments about the unfairness of punishing possession of child pornography at the same level as creation or distribution. Indeed, Nissen's attorney expressly stated that he was "not objecting to the application of [the guidelines] but just the appropriateness of them." Nissen did not object to the court's reliance on the uncontested information in the PSR or its finding that he possessed 600 or more images of child pornography. Instead, Nissen requested a downward variance.
The court announced that it had "considered each and every factor that applies" under 18 U.S.C. § 3553(a) and discussed aspects of Nissen's history and the nature of his offense. In particular, the court discussed the devastating effects of child pornography on its victims and found by a preponderance of the evidence that Nissen had sexually abused his three-year-old daughter. The court then stated that it had "considered the other statutory factors that apply" but declined to dictate those into the record. The court denied Nissen's request for a downward variance and determined that "given all the statutory factors in this case, a guideline sentence is appropriate" and that it should be "a sentence at the very top of the advisory guideline range." Nissen was sentenced to 120 months imprisonment followed by 10 years of supervised release. Pursuant to a plea agreement, the Government moved to dismiss Count 2, and the motion was granted. At the end of the sentencing hearing, the court restated its position that the maximum sentence was warranted because of Nissen's criminal history and the other section 3553(a) factors.
On appeal, Nissen challenges the district court's calculation of the Guidelines range, arguing that the court erred by applying a five-level increase because there were insufficient facts to show that Nissen knowingly possessed more than 600 images of child pornography. Nissen also claims that the court failed to adequately explain the factors it relied upon in calculating his sentence.
In reviewing a sentence, "[w]e first 'ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.'" United States v. Buesing, 615 F.3d 971, 974-75 (8th Cir. 2010) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)).*fn4 However, "[i]f a defendant fails to object timely to a procedural sentencing error, the error is forfeited and may only be reviewed for plain error." United States v. Vaughn, 519 F.3d 802, 804 (8th Cir. 2008). "'Under plain error review, the defendant must show: (1) an error; (2) that is plain; and (3) that affects substantial rights. If a defendant makes that showing, an appellate court may exercise its discretion to correct a forfeited error only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings.'" United States v. MacInnis, 607 F.3d 539, 542 (8th Cir.), cert. denied, 131 S. Ct. 494 (2010) (quoting United States ...