United States v. Nissen
2012 U.S. App. LEXIS 1336
| 8th Cir. | 2012Background
- Nissen pled guilty to possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B).
- A search warrant on January 23, 2009 led to seizure of Nissen's computer and its forensic analysis.
- Forensic findings indicated 123 visual depictions of minors engaged in sexual acts or displaying genitalia.
- PSR attributed 39 images, 83 thumbnails from a Windows Movie Maker file, and 1 video to the offense, with thumbnails from 40–50 videos; eight videos referenced as possessed.
- PSR concluded the defendant possessed more than 600 images, triggering a five-level enhancement; additional two-level enhancements applied for prepubescent sexual content, sadistic/masochistic conduct, and use of a computer; acceptance of responsibility reduced total level.
- District court calculated a guidelines range of 97–121 months but capped by statutory maximum at 120 months; Nissen received 120 months plus 10 years supervised release.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 600+ image enhancement was supported by fact | Nissen argues insufficient facts to prove 600+ images. | Government contends PSR/proved by preponderance and circumstantial evidence. | No plain error; district court reasonably applied the 600+ image enhancement. |
| Whether the sentence explanation satisfied procedural requirements | Nissen contends district court failed to explain 'other statutory factors'. | Court's reference to § 3553(a) factors suffices; not required to recite every factor. | No plain error; clear awareness and consideration of relevant factors appeared in the record. |
Key Cases Cited
- United States v. Azure, 596 F.3d 449 (8th Cir.2010) (objections to PSR must be specific to defeat reliance on PSR facts)
- United States v. Moser, 168 F.3d 1130 (8th Cir.1999) (challenge to PSR factual statements must be specific)
- United States v. Razo-Guerra, 534 F.3d 970 (8th Cir.2008) (clear specificity required for objections to PSR)
- United States v. Vaughn, 519 F.3d 802 (8th Cir.2008) (plain-error review for sentencing procedural errors)
- Gall v. United States, 552 U.S. 38 (2007) (standard for reviewing sentences under 18 U.S.C. § 3553(a))
- United States v. Guarino, 517 F.3d 1067 (8th Cir.2008) (requirement of adequate explanation of sentencing decisions)
- United States v. Perkins, 526 F.3d 1107 (8th Cir.2008) (district court need not recite every § 3553(a) factor)
- United States v. Mees, 640 F.3d 849 (8th Cir.2011) (sufficiency of explanation after considering § 3553(a))
- United States v. Cordy, 560 F.3d 808 (8th Cir.2010) (courts may rely on evidence to support § 2G2.2(b)(7)(D) enhancement)
- United States v. Patrick, 363 Fed.Appx. 722 (11th Cir.2010) (unpublished; basis for enhancement inference)