United States v. Kenneth Pappas
2013 U.S. App. LEXIS 9209
8th Cir.2013Background
- Kenneth Pappas sexually abused his stepdaughter K.D. for about five years starting when she was nine.
- Pappas forced K.D. to participate in sexual acts, wear specific clothing, and watch videos he recorded; he took two videos of the abuse.
- K.D. reported the abuse after Pappas and her mother separated in 2011.
- Pappas pled guilty to counts 1 and 3 (sexual exploitation of a child and possession of child pornography); count 2 was dismissed.
- The district court sentenced Pappas to the statutory maximum of 480 months after applying multiple sentencing enhancements (2G2.1(b)(4), 4B1.5(b)(1), among others).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2G2.1(b)(4) enhancement was properly applied. | Pappas contends the 4-level enhancement for sadistic/ma- tochistic depictions double counts the same conduct. | The government argues no impermissible double counting occurred; § 2G2.1(b)(4) bases on depictions, not solely acts. | Not an impermissible double count; district court did not err. |
| Whether the 4B1.5(b)(1) pattern-enhancement applies. | Pappas argues the pattern enhancement is inapplicable to a single victim over one period. | Evidence shows abuse over five years with two videos, satisfying a pattern of prohibited conduct. | Applied; district court did not err. |
| Whether § 2G2.1 should be categorically rejected as policy-driven rather than empirical. | Pappas challenges § 2G2.1 as lacking empirical basis. | Courts may rely on the guidelines; the provision is not categorically invalid. | Not properly challenged on appeal; valid consideration under guidelines. |
| Whether any guideline error renders the sentence procedurally or substantively unreasonable. | Claim of procedural error in guideline calculation. | District court would impose 480 months irrespective of guidelines; harmless error. | Harmless error; sentence affirmed. |
| Whether the final sentence is substantively reasonable under 18 U.S.C. § 3553(a). | Sentence too long given the guidelines range. | Court properly weighed § 3553(a) factors, found substantial harm and danger to society. | Sentence affirmed as reasonable. |
Key Cases Cited
- United States v. Street, 531 F.3d 703 (8th Cir. 2008) (defined sadistic/violent depictions under § 2G2.1(b)(4))
- United States v. Diaz, 368 F.3d 991 (8th Cir. 2004) (explained definitions related to depictions of violence)
- United States v. Yarrington, 634 F.3d 440 (8th Cir. 2011) (discussed scope of § 2G2.1(b)(2) vs (b)(4))
- United States v. Myers, 598 F.3d 474 (8th Cir. 2010) (addressed double counting under guidelines)
- United States v. Fleetwood, 457 F. App'x 591 (8th Cir. 2012) (applied § 4B1.5(b)(1) to prolonged abuse of a minor)
- United States v. Shuler, 598 F.3d 444 (8th Cir. 2010) (limited appellate review to substantive reasonableness after guideline range determined)
- United States v. Gall, 552 U.S. 38 (U.S. 2007) (limitations on sentencing procedures; standard for review)
- United States v. Toothman, 543 F.3d 967 (8th Cir. 2008) (abuse-of-discretion standard for sentence review)
- United States v. Davis, 583 F.3d 1081 (8th Cir. 2009) (harmless-error analysis for guideline misapplication)