834 F.3d 887

8th Cir.

2016

UNITED STATES оf America, Plaintiff-Appellee, v. Frank Todd BURNS, Defendant-Appellant.

No. 15-2660

United States Court of Appeals, Eighth Circuit.

Submitted: April 14, 2016. Filed: August 23, 2016.

887

making false reports with immunity.” Id. The clerks’ incident report has more than sufficient indicia of reliability to justify the officers’ stop. It is not a mere anonymous rеport of a person with a handgun, as was the case in Florida v. JL, but a detailed report by identified convenient store clerks who called the Lincoln Police Department and described the van, its occupants, and the passenger‘s suspicious and disturbing conduct with a gun.

“Reasonable suspicion depends on ‘the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.‘” Id. at 1690 (quoting Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). The majority concludes that “the young man did not display hostile or menacing conduct toward the clеrks in the store.” I disagree. The convenience store clerk‘s report that a young man entered the convenience store at night, stared at the cash register while ignoring the clerk‘s questions, and subsequently sat in a van pretending to blow smoke off the barrel of a hand gun in clear view as a clerk removed garbage from the store described disturbing and threatening events sufficient to supрort an officer‘s reasonable suspicion that criminal activity was afoot under the totality of the circumstances.

Accordingly, I would hold that the officers are entitled to qualified immunity with resрect to Duffie‘s claim arising from the stop of his vehicle, and I would affirm the district court with respect to Duffie‘s remaining claims for the reasons set forth in the District Court‘s opinion.

Counsel who represеnted the appellant was ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Matthew M. Boles of Des Moines, IA.

Counsel who represented the appellee was Craig P. Gaumer, AUSA, of Des Moines, IA.

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 court¹ 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 defеrence” because they are “politically-motivated mandates” by Congress that are “not supported by empirical data.” Burns presented this argument to the district court, which rejectеd 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 cоurt; 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, 130 S.Ct. 3436, 177 L.Ed.2d 343 (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 оf 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, 130 S.Ct. 3533, 177 L.Ed.2d 1112 (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 cаlled 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 cоntact 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 enhancemеnts: a 4-level increase for possession of sadistic images, § 2G2.2(b)(4); a 5-level increase for engaging ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in “a pattern of activity in-volving the sexual abuse or exploitation of a minor,” § 2G2.2(b)(5); and a 2-level increase for an offense that “involved the usе 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, dеnying 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 servicе.” 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 guidelinеs range, particularly when Burns indisputably used a computer to morph and possess images that were “per se sadistic” under Eighth Circuit precedent. United States v. Koch, 625 F.3d 470, 480 (8th Cir. 2010); see Dodd, 598 F.3d at 453.

2. The five-level enhancement in § 2G2.2(b)(5) applies if the defendant “engaged in a рattern of activity involving the sexual abuse or exploitation of a minor.” “Pattern of activity” means “any combination of two or more separate instances of the sexual abuse оr sexual exploitation of a minor,” whether or not the instances occurred during the offense of conviction, involved the same minor, or resulted in a conviction. Id. comment. (n.1). “Sexual abusе or exploitation” is defined to include enumerated state and federal ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍offenses, and “an attempt or conspiracy to commit” any of the enumerated offenses. Id. The enumerated offenses include 18 U.S.C. § 2243(a)(1), which prohibits knоwingly engaging in a sexual act with a person who “has attained the age of 12 years but has not attained the age of 16 years.” A “sexual act” includes “the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to ... arouse or gratify the sexual desire of any person.” 18 U.S.C. § 2246(2)(D). Here, Burns admitted to “inappropriatеly touching” his minor daughter on several occasions, which included reaching into her pants to her pubic hair, conduct the defense expert described as an attempt “to seduce [RB] and get her more and more willing to engage in illicit sexual contact with him.” The district court did not abuse its discretion in finding the § 2G2.2(b)(5) enhancement warranted on this sentencing record.

III.

Finally, Burns argues that his within-range 97-month sentence is substantively unreasonable because the district court gave too little weight to mitigating factors—his public service, work history, military service, and lack of criminal history—and imposed a sentence greater than necessary to comply with 18 U.S.C. § 3553(a). We review the substantive reasonableness of a sentence under a deferential abuse-of-discretion standard, and we presume that a sentence imposed within the advisory guidelines range is reasonable. Black, 670 F.3d at 882. It is “the unusual case when we reverse a district court sentence—whether within, above, or below the applicable Guidelines range—as substantively unreasonable.” United States v. Feemster, 572 F.3d 455, 464 (8th Cir. 2009) (en banc).

Here, the district court considered the § 3553(a) factors and set forth a rea-soned basis for its sentence. The court explained at length why it concluded that Burns‘s offense was “profoundly serious,” emphasizing that Burns engaged in “hands on” abuse that damagеd his daughter and family. At sentencing, RB gave a victim impact statement recounting how Burns‘s sexual abuse and demand that he keep the abuse hidden from her family made her “live a life of hell” and causеd a decade‘s worth of “pain, heartache and suffering.” The court further emphasized the “unusual fact” that Burns had created his own child pornography by morphing the face of his daughter and others onto sexually explicit material. The court considered mitigating factors urged by Burns, and acknowledged evidence suggesting a low risk of recidivism. Ultimately, however, the court determined that thе mitigating evidence did not outweigh the “damage that‘s been done and the unique nature of the conduct that‘s involved in this case.” We conclude that the court did not abuse its substantial sentencing discretion in imposing a within-guidelines sentence.

The judgment of the district court is affirmed.

Notes

The Honorable James E. Gritzner, United States District ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Judge for the Southern District of Iowa.

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