Submitted: April 14, 2016
from United States District Court for the Southern District
of Iowa - Des Moines
LOKEN, BEAM, and SMITH, Circuit Judges.
Todd Burns pleaded guilty to possession of child pornography
in violation of 18 U.S.C. § 2252A(a)(5)(B). The district
court 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.
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).
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).
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.
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."
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.
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.
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 ...