United States v. Frank Burns
2016 U.S. App. LEXIS 15417
| 8th Cir. | 2016Background
- Defendant Frank Todd Burns pleaded guilty to possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B) and was sentenced to 97 months' imprisonment.
- Forensic exam of Burns's devices found ~128 images (2006–2012), including downloaded images of explicit sexual acts with children and images Burns "morphed" by inserting faces of his daughter (RB), his wife, acquaintances, and his own face into explicit material.
- Burns admitted morphing images, that they aroused him, and to repeatedly "inappropriately touching" his daughter beginning at age 13–14 (fondling, kissing breasts, touching pubic hair); the abuse continued over several years.
- Plea agreement stipulated facts relevant to sentencing: sadistic images (oral, anal, vaginal sex with a minor), use of a computer, and possession of over 100 but under 150 images.
- District court applied enhancements under U.S.S.G. § 2G2.2(b)(4) (sadistic images), (b)(5) (pattern of sexual abuse or exploitation of a minor), and (b)(6) (use of a computer), producing a guideline range of 78–97 months and imposing the top-of-range 97-month sentence.
- Burns appealed, arguing (1) § 2G2.2 is flawed policy and entitled to little deference, (2) specific § 2G2.2(b) enhancements were unwarranted, and (3) the within-range sentence was substantively unreasonable under 18 U.S.C. § 3553(a).
Issues
| Issue | Plaintiff's Argument (Burns) | Defendant's Argument (Government/District Court) | Held |
|---|---|---|---|
| Whether § 2G2.2 may be rejected as politically motivated and unempirical | § 2G2.2 is a politically motivated mandate lacking empirical support and deserves little deference | A district court may apply the guideline; appellate review limited to reasonableness of the specific sentence under properly determined guidelines | Rejected: appellate role is limited; court may apply § 2G2.2 and review substantive reasonableness only |
| Whether enhancement for sadistic images (§ 2G2.2(b)(4)) was improper | Enhancement unwarranted despite stipulation | Burns stipulated that images were sadistic; images (and morphing) fit Eighth Circuit precedent for "per se sadistic" material | Upheld: enhancement proper based on stipulation and precedent |
| Whether five-level "pattern of activity" enhancement (§ 2G2.2(b)(5)) was supported | Enhancement improper because pattern not established or convictions absent | Burns admitted multiple instances of sexual touching of his minor daughter, which qualifies as separate instances of sexual abuse under the guideline definitions | Upheld: factual findings supported the pattern-of-activity enhancement |
| Whether the within-guidelines 97-month sentence was substantively unreasonable under § 3553(a) | Court gave insufficient weight to mitigating factors (service, work, military, no criminal history); sentence greater than necessary | District court considered § 3553(a), victim impact, hands-on abuse, unique morphing conduct, and balanced mitigating evidence against harms | Upheld: within-range sentence presumed reasonable; district court did not abuse discretion |
Key Cases Cited
- United States v. Black, 670 F.3d 877 (8th Cir. 2012) (presumption that within-guidelines sentence is reasonable; standards for reviewing child-pornography guideline challenges)
- United States v. Shuler, 598 F.3d 444 (8th Cir. 2010) (appellate review limited to substantive reasonableness where guidelines properly applied)
- United States v. Muhlenbruch, 682 F.3d 1096 (8th Cir. 2012) (treatment of challenges to child-pornography guideline)
- United States v. Dodd, 598 F.3d 449 (8th Cir. 2010) (standard of review for guideline interpretation and factual findings)
- United States v. Koch, 625 F.3d 470 (8th Cir. 2010) (images involving adults penetrating children are per se sadistic under § 2G2.2)
- United States v. Randolph, 101 F.3d 607 (8th Cir. 1996) (court not bound by plea-stipulated guideline recommendations)
- United States v. Feemster, 572 F.3d 455 (8th Cir. 2009) (deferential abuse-of-discretion standard for substantive reasonableness review)