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United States v. Burns

United States Court of Appeals, Eighth Circuit

August 23, 2016

United States of America Plaintiff-Appellee
v.
Frank Todd Burns Defendant-Appellant

          Submitted: April 14, 2016

         Appeal from United States District Court for the Southern District of Iowa - Des Moines

          Before LOKEN, BEAM, and SMITH, Circuit Judges.

          LOKEN, Circuit Judge.

         Frank Todd Burns pleaded guilty to possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). The district court[1] sentenced him to 97 months in prison. Burns appeals the sentence, arguing the court abused its discretion by imposing unwarranted sentencing enhancements under U.S.S.G. § 2G2.2(b)(4)-(6), resulting in a substantively unreasonable sentence within his advisory guidelines range. We affirm.

         I.

         On appeal, Burns first argues generally that the district court abused its discretion by relying on "child pornography guidelines" in § 2G2.2 that "deserve little deference" because they are "politically-motivated mandates" by Congress that are "not supported by empirical data." Burns presented this argument to the district court, which rejected it. As we have stated repeatedly, even if a district court "may disregard the child pornography sentencing guideline on policy grounds, [it] is not required to do so." United States v. Black, 670 F.3d 877, 882 (8th Cir. 2012). Thus, Burns's assault on § 2G2.2 "is not properly made to this court; our appellate role is limited to determining the substantive reasonableness of a specific sentence where the advisory guidelines range was determined in accordance with § 2G2.2." United States v. Shuler, 598 F.3d 444, 448 (8th Cir.), cert. denied, 560 U.S. 975 (2010); see United States v. Muhlenbruch, 682 F.3d 1096, 1102 (8th Cir. 2012).

         II.

         Burns further argues that the district court abused its discretion by imposing specific, unwarranted § 2G2.2(b) enhancements. These contentions require a closer look at the offense of conviction and the sentencing record. We review the court's factual findings for clear error and its interpretation of the guidelines de novo. United States v. Dodd, 598 F.3d 449, 450 (8th Cir.), cert. denied, 561 U.S. 1037 (2010).

         In December 2012, Burns's wife gave law enforcement agents three thumb drives belonging to her husband and also reported that Burns had sexually abused their daughter, RB, in 2007, when she was a minor. Forensic examination revealed approximately 128 images of child pornography collected and viewed by Burns from 2006 to 2012. Some images downloaded from the internet showed adults vaginally and anally penetrating children. Other images were "morphed" by Burns -- he digitally inserted the faces of RB, his wife, and other acquaintances onto the bodies of women engaged in sexually explicit conduct in downloaded images, and inserted his face into some images to make it look as if he was having sex with his daughter.

         During a 2012 interview with law enforcement, Burns admitted to morphing the images and explained that the images aroused him sexually. He also admitted to "inappropriately touching" RB on multiple occasions, beginning when she was thirteen or fourteen years old. On the first occasion, Burns fondled RB's bare breast and then kissed her breast and nipple while she was showering. The abuse continued over a four-year period and included reaching down RB's pants and touching pubic hair, though Burns denied touching her genitalia. At sentencing, a psychologist called by Burns as a defense witness agreed on cross-examination that Burns "was, in essence, over a period of time trying to seduce [RB] and get her more and more willing to engage in illicit sexual contact with him."

         Burns's plea agreement included lengthy provisions relating to sentencing and the applicability of the advisory guidelines, including as part of Paragraph 11(b):

The parties stipulate as a recommendation to the district court that the offense involved images of oral, anal, and vaginal sex acts with a minor, which constitutes sadistic conduct; the offense involved a computer or interactive computer service; and the defendant possessed over 100 images of child pornography . . . but under 150 images.

         Based on this stipulation; the factual findings in the Presentence Investigation Report, to which Burns did not object; the testimony at sentencing; and the transcript of Burns's December 2012 interview, the district court overruled Burns's timely objections to the following enhancements: a 4-level increase for possession of sadistic images, § 2G2.2(b)(4); a 5-level increase for engaging in "a pattern of activity involving the sexual abuse or exploitation of a minor, " § 2G2.2(b)(5); and a 2-level increase for an offense that "involved the use of a computer, " § 2G2.2(b)(6). These and other adjustments produced an advisory guidelines range of 78 to 97 months. After hearing from Burns, four defense witnesses, and RB, the district court imposed a 97-month sentence, denying Burns's request for a downward variance.

         1. Burns's challenge to the enhancements for "sadistic" material under § 2G2.2(b)(4) and for "the use of a computer" under § 2G2.2(b)(6) are without merit. Burns stipulated in Paragraph 11(b) of the plea agreement that "the offense involved images of oral, anal, and vaginal sex acts with a minor, which constitutes sadistic conduct, " and that "the offense involved a computer or interactive computer service." Although the district court was not required to follow this guidelines stipulation, see, e.g., United States v. Randolph, 101 F.3d 607, 609 (8th Cir. 1996), the court did not abuse its discretion by applying these enhancements in determining the advisory guidelines range, particularly when Burns indisputably used a computer to morph and ...


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