United States of America v. Nathan Lee Kempter
No. 21-1331
United States Court of Appeals, Eighth Circuit
March 29, 2022
United States Court of Appeals
For the Eighth Circuit
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No. 21-1331
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United States of America
Plaintiff - Appellee
v.
Nathan Lee Kempter, also known as Nathan L. Kempter
Defendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Lincoln
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Submitted: November 18, 2021
Filed: March 29, 2022
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Before BENTON, KELLY, and ERICKSON, Circuit Judges.
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I.
In July 2019, at age 32, Kempter began corresponding with then-14-year-old
C.I. through the social media site Reddit, specifically on a Subreddit for runaway
teens. After their initial contact, on or about July 23, 2019, C.I. requested they use
the social media website Tumblr to communicate instead. At first, Kempter and C.I.
discussed how Kempter could help C.I. run away from home, but Kempter then
introduced a
On July 30, 2019, Kempter and C.I. began forming a plan in which Kempter would pick up C.I. in Lincoln, Nebraska, to help her run away. According to C.I., on that date Kempter’s messages also became “more sexual.” In messages sent July 30 and 31, Kempter asked C.I. about her interest in sex, bondage, and pornography, and expressed his desire to engage in sexual activity with her. He also asked C.I. to send him selfies. On August 1, 2019, Kempter suggested they speak over the phone to discuss logistics of him helping C.I. run away so that their conversation would not be in writing, and he told C.I. to delete her call history after they spoke. Ultimately, they arranged for Kempter to meet C.I. outside her parents’ house in Lincoln and to take C.I. to his home in Highlands Ranch, Colorado.
On August 2, 2019, Kempter drove to C.I.’s house, and she got into his car. Kempter lowered the passenger seat and covered C.I. with a coat so she was less visible. During the drive, Kempter touched C.I.’s breasts and legs, and talked about his sexual interest in her. Kempter stopped at a Walmart in Lexington, Nebraska, about two and half hours from Lincoln, where he purchased different clothes for C.I. to wear and a blanket to keep her covered. After the Walmart stop, Kempter’s touching became more forceful. At one point, he pulled the car over, got on top of C.I., and put his hands on her neck. During the trip, Kempter told C.I. what to say if anyone found them together and, at some point, he gave C.I. his phone to use to delete her Reddit account. Kempter asked her to delete Tumblr too, but she could not do so without her phone, which she left at home in Lincoln.
Meanwhile, C.I.’s parents discovered she had left home without her cell phone and contacted the Lincoln Police Department (LPD). They provided C.I.’s cell phone and a phone bill, which showed a call to a number from Denver, Colorado. With this information and some additional investigation, the police were able to find Kempter’s address, estimate the route Kempter would be driving, and then use cell phone tower pings to track his car. LPD contacted the Douglas County Sheriff’s Office in Colorado, and when Kempter and C.I. arrived at Kempter’s house in Highlands Ranch, officers were waiting for them. Kempter was taken into custody. Officers asked how old the girl in the car was, and Kempter told them she was 14. C.I. was placed in a police car, where video footage recorded her expressing frustration that they had been caught. The following day, a forensic nurse examined C.I. and documented swelling on the front of C.I.’s neck and abrasions and bruising around her breasts.
On August 21, 2019, Kempter was charged in a two-count indictment with
attempted enticement of a minor, in violation of
At sentencing, Kempter objected to sentencing enhancements proposed in the
months of imprisonment and 12 years of supervised release on each count, and ordered Kempter to pay $13,895.36 in restitution to C.I. and her family. Kempter timely appealed.
II.
Kempter challenges the sufficiency of the evidence on both counts of conviction. The court reviews “the sufficiency of the evidence de novo, viewing evidence in the light most favorable to the jury’s verdict, resolving conflicts in the government’s favor, and accepting all reasonable inferences that support the verdict.” United States v. King, 898 F.3d 797, 808 (8th Cir. 2018) (quoting United States v. Tillman, 765 F.3d 831, 833 (8th Cir. 2014)). A verdict will be overturned “only if no reasonable jury could have found the defendant guilty beyond a reasonable doubt.” Id.
To convict a defendant of inducing a child to engage in criminal sexual
activity in violation of
(1) used a facility of interstate commerce, such as the internet or telephone system; (2) knowingly used the facility of interstate commerce with intent to persuade or entice a person to engage in illegal sexual activity; and (3) believed that the person he sought to persuade or entice was under the age of eighteen.
United States v. Shinn, 681 F.3d 924, 931 (8th Cir. 2012) (quoting United States v.
Young, 613 F.3d 735, 742 (8th Cir. 2010)). A conviction based on attempt requires
proof that the defendant intended to commit the predicate offense and conduct that
constitutes a substantial step towards the crime’s commission. Id. As to Count 2,
“[t]o convict under
It is undisputed that Kempter and C.I. communicated over the internet and that Kempter believed C.I. was under the age of 18. Kempter argues, however, that the evidence was insufficient to show that he used the internet to entice C.I. to engage in illegal sexual activity. He insists their chats were about hypothetical sexual conduct only and show his sole purpose in communicating with C.I. and traveling from Colorado to Nebraska was to help her run away from home.
There was abundant evidence from which the jury could conclude that
Kempter intended to “persuade or entice” C.I. to engage in “illegal sexual activity.”
Kempter began by telling C.I. he could help her run away but soon turned the
conversation to sexual topics, both expressing his own sexual desires and asking C.I.
about her sexual interests. The two also discussed C.I.’s reasons for wanting to leave
home, and Kempter regularly assured her that he wanted to help. But viewing the
evidence in the light most favorable to the verdict, the entire string of chats reflected
an ongoing effort to persuade C.I. to trust him and, in turn, engage in illegal sexual
activity. Likewise, the jury heard sufficient evidence from which it could infer that
III.
Kempter also challenges his sentence. We review the district court’s
application of the Guidelines de novo. United States v. Waller, 689 F.3d 947, 957
(8th Cir. 2012) (per curiam). At sentencing, the district court may rely on facts
proved by a preponderance of the evidence, and we review such factual findings for
clear error. United States v. Anderson, 926 F.3d 954, 957 (8th Cir. 2019). We
review a challenge to the substantive reasonableness of a sentence “under a
‘deferential abuse-of-discretion standard.’” United States v. Manning, 738 F.3d 937,
947 (8th Cir. 2014) (quoting United States v. Beasley, 688 F.3d 523, 535 (8th Cir.
2012)). A district court must consider all sentencing factors in
A.
Kempter first contests the application of
On appeal, Kempter argues that the court focused solely on the age difference and ignored the weight of other evidence, including that C.I. wanted to run away and was initially upset that law enforcement had found them. According to Kempter, the district court did not “closely consider the facts of the case” as required. But the fact that a “victim traveled freely with [the] defendant” does not rebut the presumption that the undue influence enhancement applies, United States v. Hagen, 641 F.3d 268, 271 (8th Cir. 2011), and the enhancement may be upheld based on a “manipulative adult’s building a relationship with a minor for the purpose of eventual sexual activity,” id. (quoting United States v. Lay, 583 F.3d 436, 445 (6th Cir. 2009)); see also United States v. Hornbuckle, 784 F.3d 549, 556 (9th Cir. 2015) (“The undue-influence enhancement is not limited to force, fraud, or coercion. It also reaches manipulating and preying upon a vulnerable victim.” (cleaned up) (quoting United States v. Reid, 751 F.3d 763, 768 (6th Cir. 2014))). The district
court did not clearly err in concluding this was a case of grooming: Kempter knew
C.I. wanted to run away from home, and he manipulated that weakness by
corresponding with C.I. for the purpose of eventual sexual activity.
B.
Kempter also appeals the two-level sentencing enhancement for obstruction
of justice. See
Kempter now argues that the enhancement was improperly applied because neither he nor C.I. had any reason to believe that law enforcement would become involved since C.I. was running away from her parents, not the law. We find this argument unavailing. The record shows that Kempter made repeated effortsto avoid detection, including researching Nebraska kidnapping and abduction laws. Such conduct supports an inference that Kempter believed he was or would be under investigation, and thus willfully attempted to obstruct or impede the administration of justice. See United States v. Dillard, 370 F.3d 800, 805 (8th Cir. 2004) (suggesting that evasive or obstructive conduct itself may show that a defendant believes he is likely under investigation).
Moreover, to the extent Kempter argues that the enhancement was improper because any obstructive conduct occurred before the investigation began, we
disagree. We have held that, for purposes of
We have not revisited Stolba in light of the updated Guidelines commentary,
and we need not do so here because the district court did not clearly err in applying
the enhancement as the record shows that Kempter willfully attempted to impede
law enforcement throughout the entirety of the offense conduct. Water, 413 F.3d at
819 (“We review the imposition of [the obstruction of justice] enhancement for clear
error.”). Though the timeline of the obstructive conduct after Kempter picked up
C.I. in Lincoln—deleting social media accounts, hiding C.I. from view in the car—
compared to the starting point of the official investigation is not entirely clear, the
record supports an inference that at least some of the steps Kempter took occurred
after LPD began tracking the car. The record shows that C.I.’s family contacted
LPD around 5 p.m. on August 2, 2019, and that Kempter stopped at Walmart in
Lexington—a town about two and a half hours from Lincoln—around 7:30 p.m.
Kempter’s efforts to hide C.I. from view, to make up a story for C.I. to use if anyone
questioned them, and to delete C.I.’s social media
C.
Kempter also claims the district court imposed a substantively unreasonable sentence. He argues the district court failed to consider his military service, his employment history, that his computer contained no child pornography, and his lack
of criminal history. We find no abuse of discretion. A review of the record shows
that the district court properly considered the
III.
As a special condition of supervised release, the district court ordered that
Kempter submit to polygraph examinations. Kempter challenges this condition as
not rationally related to the crime of conviction and unnecessary to achieve the
purposes of sentencing under
A special condition of supervised release must be “(1) reasonably related to
the factors in
included when it is used for treatment purposes, not as a means to gather evidence. Id. at 1110.
There is no allegation that Kempter was dishonest with the court or the probation office, but he did make numerous attempts to evade detection and avoid apprehension, and he asked a minor to delete evidence of his criminal activity. Here, the district court—which presided over the trial and the sentencing—had before it all of the offense conduct when it imposed the special condition. While the justification for the condition was not detailed, a reason for it can be discerned from the record, and we find no abuse of discretion. Simpson, 932 F.3d at 1156.
IV.
Finally, Kempter appeals the district court’s decision to award restitution. We review de novo legal interpretations made by the district court in determining whether to award restitution. United States v. Gammell, 932 F.3d 1175, 1180 (8th Cir. 2019), cert. denied, 140 S. Ct. 2809 (2020). We review restitution awards for abuse of discretion and any factual findings about the amount to be paid for clear error. United States v. Hoskins, 876 F.3d 942, 945 (8th Cir. 2017).
A.
The district court awarded restitution pursuant to
2429(b)(1) of the AHTA instructs that the court “shall direct the defendant to pay
the victim . . . the full amount of the victim’s losses”—but an issue arises when
looking to the definition of that term. Section 2429(b)(3) states, “[a]s used in this
subsection, the term ‘full amount of the victim’s losses’ has the same meaning as
provided in section 2259(b)(3).”
The legislative history of the relevant provisions makes sense of how this gap in the AHTA restitution statute likely came to be. The AHTA, including § 2429(b)(3), became effective December 21, 2018. Section 2259 was amended on December 7, 2018, through passage of the Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018 (AVAA).3 Before the AVAA, § 2259(b) was the definitions subsection, rather than § 2259(c) as it exists now, with § 2259(b)(3) defining “full amount of victim’s losses.” Congress apparently failed to update the cross-reference for the definition in the AHTA to match the amended version of § 2259.
We conclude that this is a scrivener’s error and use the definition found at
§ 2259(c)(2) for purposes of applying § 2429(b)(1). A scrivener’s error that
produces an absurd result constitutes a narrow exception to the principle of
adherence to the plain meaning of a statute. Owner-Operator Indep. Drivers Ass’n
v. United Van Lines, LLC, 556 F.3d 690, 694 (8th Cir. 2009). A scrivener’s error
exists only if, after reviewing the structure, language, and subject matter of the
statute in detail, the court finds no plausible purpose
Taking the two provisions together and reading in the correct cross-reference
is the only reasonable construction. See United States v. Mahoney, No. CR18-0090,
2019 WL 1040402, at *2 (W.D. Wash. Mar. 5, 2019) (“As used in this subsection,
the term ‘full amount of the victim’s losses’ has the same meaning as provided in
section 2259[(c)(2)].” (alteration in original) (quoting
B.
The amount of restitution awarded is the last issue we address. The district court awarded restitution of $13,895.36, attributed to out-of-pocket costs incurred by C.I.’s family for therapy and educational accommodations for C.I. Kempter
argues the district court abused its discretion by awarding restitution for damages not caused by Kempter but inflicted by other perpetrators both before and after his offense conduct.
The applicable restitution provision includes a non-exhaustive list of the types
of damages that may be awarded to reimburse a victim’s losses, including medical
services, therapy, and “any other relevant losses incurred by the victim.”
The expenses the district court identified—therapy and educational
resources—fall within the definition of “full amount of the victim’s losses” through
the enumerated and catchall terms. As to whether the damages were proximately
caused by Kempter’s offenses, the district court did not clearly err in concluding that
they were. At sentencing, C.I.’s father testified that all of the expenses at issue were
incurred after August 2, 2019, and the family would not have pursued the services
for C.I. but for Kempter’s conduct. Acknowledging that restitution may be awarded
for only those losses proximately caused by the offenses of conviction, the district
court said it had “little difficulty connecting [C.I.’s] damages to the conduct of
[Kempter’s] offenses.” The district court was not obligated to make a “precise
mathematical inquiry” into the amount of
VI.
For the foregoing reasons, we affirm the district court’s decisions in all respects. ______________________________