ORDER
The Opinion filed on June 18, 2009, is AMENDED as follows:
The term “natural” appearing in the second paragraph of Section I of the slip opinion appearing at page 7282, is DELETED and REPLACED with the term “biological.”
The Clerk of the Court is hereby instructed to issue the mandate in accordance with Federal Rule of Appellate Procedure 41.
OPINION
Following a two-day bench trial before the Honorable Donald W. Molloy in the District of Montana, Walter Merle Overton was convicted on two counts of sexual exploitation of a minor in violation of 18 U.S.C. § 2251(a) and (b), and on separate counts of receipt of child pornography and possession of child pornography in violation of 18 U.S.C. § 2252A(a)(2) and (a)(5)(B), respectively. The district court sentenced Overton to a term of incarceration of 235 months, to be followed by a lifetime of supervised release.
Overton advances several arguments on appeal. He contends (1) that there was insufficient evidence to support a conviction on the sexual exploitation counts, (2) that his conviction on the multiple counts violated the Fifth Amendment’s prohibition against double jeopardy, and (3) that the district court committed reversible error in imposing his sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
*683 I
On June 5, 2006, an 18-year-old female, JNW, walked into a Manhattan, Montana bank, and disclosed to a teller that she had been raped earlier that morning by her stepfather, who was waiting outside. The bank teller immediately alerted the local sheriffs office. Deputies responded and arrested Walter Merle Overton.
Early that morning, Overton and his wife Laura Nelson Overton, JNW’s biological mother (“Nelson”), left home for work at Montana State University (“MSU”) in Bozeman, where they were both employed. Overton, however, surreptitiously made his way back to their house that morning. 1 Overton entered JNW’s bedroom and, finding his stepdaughter alone in the house and still in bed, told her to remove her clothes. 2 In addition to engaging in sexual contact, he took nude pictures of her with a digital camera in various rooms of the house.
While in custody and after waiving his Miranda rights, Overton admitted to engaging in various sexual acts with his stepdaughter. The Gallatin County Sheriffs Office began an investigation and later the Federal Bureau of Investigation became involved. 3 The subsequent investigation resulted in the discovery of large quantities of electronically-stored pornographic images, many depicting children (which Overton had downloaded from the Internet), and nude pictures of JNW (which he had taken himself), all of which led to the federal charges and Overton’s conviction now before us.
As he did on the morning of June 5, Overton had taken nude photographs of his stepdaughter on at least two prior occasions. The first of these incidents took place in about March 2005 when JNW was 17 years old and a minor. On this occasion, Overton confronted her with a camera and insisted that “a family should be closer and sexuality shouldn’t be a big deal” and that JNW “shouldn’t be afraid of [her] body.” JNW ultimately acquiesced and allowed him to take nude photographs of her in various poses in both his bedroom and the living room. Overton later loaded the photographic images of JNW onto his home computer.
JNW later divulged to her mother what had occurred. Nelson confronted Overton, who admitted that he had photographed JNW and showed her at least one of the images. Nelson demanded that he dispose of the pictures and imposed a rule that Overton should not be alone with JNW in the future. Contrary to the assurances provided to his wife, Overton copied the homemade images of his minor stepdaughter to a memory device and transferred them to his work computer at MSU. Unbeknownst to Nelson or JNW, he later reinstalled the illicit images of JNW onto the home computer.
In February 2007, Overton, with counsel present, was interviewed by FBI Special Agents Kevin Damuth and John Sorensen as part of the federal investigation. During that meeting Overton admitted that he routinely downloaded pornography, including child pornography, from the Internet, which he then saved to special directory *684 folders on his home and work computers. He described his use of the MSU computer system, through which he accessed the Internet and searched free online pornography sites using suggestive search terms such as “teens.” Overton admitted that he became sexually aroused when viewing these images and characterized his conduct as an “addiction.”
Overton also told the agents that he had taken nude pictures of JNW on three separate occasions in 2005 and 2006. He then transferred those photographs from his digital camera to his computers, saving them in folders similar to those in which he placed the downloaded pornographic images. Overton also identified five photographs that were taken when JNW was 17 years old. At their request, Overton provided a written statement, confirming his admissions to the FBI agents.
Law enforcement discovered large quantities of pornography and illicit material on his home and work computers. A search of Overton’s two work computers, for example, revealed over six gigabytes of images and video including pornography. Overton had created an “F” partition on the hard drive where he stored pornographic images, depicting both adults and children. The investigation also uncovered the homemade images of JNW.
In July 2007, a Grand Jury indicted Overton, charging him with four federal crimes. Counts I and II charged Overton with the sexual exploitation of a minor in violation of 18 U.S.C. § 2251(a) and (b), respectively, based on the nude photographs he took of his stepdaughter. Count III charged Overton with the knowing receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(2), and Count IV charged him with the unlawful possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). The indictment also included a forfeiture count pursuant to 18 U.S.C. § 2253(a).
Overton waived his right to trial by jury and proceeded with a bench trial before Judge Molloy. At trial, the prosecution introduced numerous images presumed to be child pornography, which were received without objection, as well as various pictures of JNW, including Exhibits 6-1 through 6-5, five photographs taken during the March 2005 incident when JNW was a minor. The prosecution called a total of nine witnesses, including JNW, Nelson, and Agent Damuth, and presented Overton’s written statement from the February 2007 interview with FBI agents.
At the close of the Government’s casein-chief, Overton moved for acquittal on the ground that the prosecution failed to prove the elements in its case beyond a reasonable doubt, arguing that the pictures of JNW did not depict “sexually explicit conduct,” as required for conviction. The district court denied the motion. Overton then took the stand in his own defense, denied matters previously admitted to FBI agents, and provided rationalizations for much of his conduct involving his stepdaughter.
At the conclusion of the two-day trial, the district court found Overton guilty on all counts and entered Findings of Fact & Conclusions of Law. Specifically, the court found that Overton created and thereafter possessed three sexually explicit photographs of his minor stepdaughter and also downloaded numerous images of child pornography from the Internet onto his home and work computers. Overton filed a motion for post-conviction dismissal, requesting dismissal of either Count I or II and either Count III or IV, alleging violations of the Fifth Amendment’s Double Jeopardy Clause. The district court denied the motion in a detailed order.
*685 The Probation Office prepared a lengthy Presentence Investigation Report (“PSR”) for the sentencing phase, which described in detail the circumstances of the instant offenses and Overton’s background. Several sources confirmed Overton’s expressed belief that it was acceptable for adults to teach underage family members about sex. The PSR also relayed a past incident described by Overton’s previous wife where he allegedly propositioned one of his biological daughters to engage in sexual activity. The child was 12 years old at the time. Based on the calculated offense level and criminal history, the Probation Office recommended a Sentencing Guidelines range for imprisonment of between 188 and 235 months. This range was within the permissible statutory range for the subject offenses. 4
The parties were provided with ample opportunity to review and respond to the PSR and the Probation Office’s recommendation. The Government did not file objections. Overton’s only objection related to the double jeopardy argument raised in his previously denied post-conviction motion to dismiss. He requested a sentence at the low end of the Guidelines range.
On February 29, 2008, the district court held a sentencing hearing. After considering the arguments and evidence presented by both sides, Judge Molloy sentenced Overton to 235 months on Counts I, II, and III, and to 120 months on Count IV, to run concurrently, and to be followed by a lifetime of supervised release. Overton timely appeals his conviction and sentence.
II
Overton first claims that the Government’s proof was insufficient to sustain a conviction on the sexual exploitation counts charged in Counts I and II. Claims of sufficiency of the evidence are reviewed
de novo. United States v. Shipsey,
Overton was found guilty of violating two provisions of 18 U.S.C. § 2251, based on his conduct involving his stepdaughter. Section 2251(a), the basis of Count I, states as follows: 5
(a) Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, or who transports any minor in interstate or foreign commerce, or in any Territory or Possession of the United States, with the intent that such minor engage in, any sexually explicit conduct for the purpose of producing any visual depiction of such conduct, shall be punished as provided under subsection (e), if such per *686 son knows or has reason to know that such visual depiction will be transported in interstate or foreign commerce or mailed, if that visual depiction was produced using materials that have been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer, or if such visual depiction has actually been transported in interstate or foreign commerce or mailed.
Section 2251(b), the basis of Count II, by comparison, states in full:
(b) Any parent, legal guardian, or person having custody or control of a minor who knowingly permits such minor to engage in, or to assist any other person to engage in, sexually explicit conduct for the purpose of producing any visual depiction of such conduct shall be punished as provided under subsection (e) of this section, if such parent, legal guardian, or person knows or has reason to know that such visual depiction will be transported in interstate or foreign commerce or mailed, if that visual depiction was produced using materials that have been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer, or if such visual depiction has actually been transported in interstate or foreign commerce or mailed.
Criminal penalties for violating the sexual exploitation statute are stiff. Offenders face, at minimum, fines and imprisonment of “not less than 15 years nor more than 30 years.” 18 U.S.C. § 2251(e).
Congress defined “sexually explicit conduct” to include, inter alia, the “lascivious exhibition of the genitals or pubic area of any person.” 18 U.S.C. § 2256(2)(A)(v). 6 In our circuit the trier of fact will often look to six factors to determine whether a visual depiction of a minor constitutes a “lascivious exhibition of the genitals or pubic area” in the particular case:
1) whether the focal point of the visual depiction is on the child's genitalia or pubic area;
2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;
3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;
4) whether the child is fully or partially clothed, or nude;
5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;
6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.
United States v. Dost,
Overton’s only quarrel regarding his sufficiency of the evidence claim is his continued insistence that the nude photographs he took of JNW do not depict “sexually explicit conduct” within the meaning of § 2251. Here, the district judge, sitting without a jury and as the trier of fact, reviewed the five photographs of JNW taken in March 2005, when she was 17 years old. Although all were of JNW nude, Judge Molloy concluded that only three, Exhibits 6-2, 6-4, and 6-5, portrayed “sexually explicit conduct” because they depicted the lascivious exhibition of JNW’s genitals or pubic area. The district court supported its factual findings with detailed descriptions of each photograph with reference to the Dost factors:
Exhibit 6-2 depicts a lascivious exhibition of the genitals or pubic area of the victim. Although the child’s genitals are not the focal point of the image and are partially covered, the child’s genitals are visible. The child’s breasts are also visible. The image is sexually suggestive because the child is sitting on a bed — a place generally associated with sexual activity. The image also suggests sexual coyness. The child is posed with her head down, hair hanging in her face, and her arms covering her breasts. The hair in the child’s face and arms partially covering her breasts suggests sexual coyness or reluctance. The victim testified that Overton directed her regarding where to place her hands. Thus, the image’s depiction of sexual coyness was intended and the image was likely designed to elicit a sexual response in the viewer.
Exhibit 6-4 depicts a lascivious exhibition of the genitals or pubic area of the victim. The child is standing by a fireplace nude. She is facing the camera with her breasts fully exposed. The child’s hands are covering part of her genitals. The child’s breasts and genitals are the focal point of the image. Although only the lower portion of the child’s face is visible, her hair is covering her face, suggesting sexual coyness. The image is likely to arouse or satisfy the sexual cravings of a voyeur.
Exhibit 6-5 depicts a lascivious exhibition of the genitals or pubic area of the victim. The image is a close up, frontal view of the child’s genitals and breasts, both of which are fully exposed. The child’s genitals are in the center of the picture and are thus the focal point of the image. The image is sexually suggestive because the child is sitting with her legs spread apart — a pose generally associated with sexual activity. In light of the prominence of the child’s genitals and her pose, the image was very likely intended to elicit a sexual response in the viewer.
We must initially determine what standard of review applies to Overton’s first argument on appeal. Overton argues that de novo review of the photographs applies. We disagree. Overton’s sufficiency of the evidence claim amounts to nothing more than his personal disagreement with the trier of fact’s findings with respect to the images of JNW. He merely asks that we make our own independent determination whether or not the photographs at issue depict “sexually explicit conduct.”
*688
“The question of whether the pictures fall within the statutory definition is a question of fact as to which we must uphold the district court’s findings unless clearly erroneous.”
Wiegand,
Having reviewed the evidence presented to the district court for ourselves, we find no error, clear or otherwise, in the conclusion that Exhibits 6-2, 6-^t, and 6-5 depict “sexually explicit conduct.” Here, the Dost factors, while not definitional, firmly substantiate the finding that these three images depict the lascivious exhibition of the genitals or pubic area. The district court’s analysis of these factors with respect to the images at issue, supra, is thorough and sound. We therefore find it unnecessary to replicate this discussion and merely adopt it as part of our own.
We think the sixth
Dost
factor, “whether the visual depiction is intended or designed to elicit a sexual response in the viewer,”
Dost,
Here, the circumstances surrounding the creation of the homemade images only strengthen our conviction that the exhibition in Exhibits 6-2, 6-4, and 6-5 is “lascivious.” Overton shepherded JNW throughout the family’s home, photographing her in assorted poses with varied backdrops. JNW testified at trial that Overton “told me what to do,” “he made me pose,” and he would “tell me to move my hands in a certain way” so that “he could get a full shot.” Overton not only instigated the photographic sessions, he also staged the shoot and directed the action to fulfill his desired vision. He was “responsible for the
mise-en-scene.” Rivera,
Just as we found in
Wiegand:
“Plainly the pictures were an exhibition. The exhibition was of the genitals. It was a lascivious exhibition because the photographer arrayed it to suit his particular lust. Each of the pictures featured the child photographed as a sexual object.”
Ill
We next turn to Overton’s constitutional claims. Overton contends that his conviction on the various counts is unlawfully multiplicitous and violates the Fifth Amendment’s Double Jeopardy Clause. We review the legality of Overton’s conviction and sentence
de novo, United States v. Kimbrew,
“[T]he prohibition against double jeopardy is a cornerstone of our system of constitutional criminal procedure.”
United States v. Davenport,
As a preliminary matter, we acknowledge that conviction on multiple counts carries collateral consequences that, if unlawfully multiplicitous, we cannot ignore simply because imposed sentences might run concurrently. “For example, the presence of two convictions on the record may delay the defendant’s eligibility for parole or result in an increased sentence under a recidivist statute for a future offense ... and certainly carries the societal stigma accompanying any criminal conviction.”
Rutledge,
A
Overton claims that his conviction on both Counts I and II, for the sexual exploi *691 tation of a minor, is unconstitutional. It is undisputed that both counts were predicated on the March 2005 episode when Over-ton took nude photographs of his minor stepdaughter. Thus, the double jeopardy claim here turns on whether Overton was convicted twice for the same offense.
As acknowledged by the parties, whether § 2251(a) and (b) punish the same offense or separate offenses is a matter of first impression in our circuit. 9 Therefore, we must explore the space. We employ the well-established Blockburger test to evaluate Overton’s double jeopardy claim and conclude that Congress intended the statutory provisions to constitute separate offenses. Accordingly, we find Overton’s conviction on separate sexual exploitation counts, Counts I and II, constitutionally permissible.
1
The Supreme Court set forth a generally applicable test in
Blockburger v. United States,
The
Blockburger
test is merely “a ‘rule of statutory construction,’ and because it serves as a means of discerning congressional purpose the rule should not be controlling where ... there is a clear indication of contrary legislative intent.”
Albernaz v. United States,
Applying the Blockburger test to this case, it is readily apparent that § 2251(a) and (b) constitute separate offenses from which we infer Congress’s intent to authorize multiple punishments for a single act or transaction. As the district court ruled and as the Government maintains on appeal, each statutory provision requires proof of an additional fact which the other does not. To obtain a conviction under § 2251(a), the prosecution must prove that the defendant “employ[ed], use[d], persuade[d], induce[d], entice[d], or coerce[d] any minor to engage in,” “had a minor assist.any other person to engage in,” or “transported any minor in interstate or foreign commerce ... with the *692 intent that such minor engage in, any sexually explicit conduct for the purpose of producing any visual depiction of such conduct.” 18 U.S.C. § 2251(a). In contrast, to obtain a conviction under § 2251(b), the prosecution must prove that the defendant is a “parent, legal guardian, or person having custody or control of a minor who knowingly permits such minor to engage in, or to assist any other person to engage in, sexually explicit conduct for the purpose of producing any visual depiction of such conduct.” 18 U.S.C. § 2251(b).
The evidence necessary to establish a violation of § 2251(a) will not necessarily suffice for a conviction under § 2251(b), and vice versa.
Compare
Model Crim. Jury Instr. 9th Cir. 8.150 (2008) (18 U.S.C. § 2251(a))
with
Model Crim. Jury Instr. 9th Cir. 8.151 (18 U.S.C. § 2251(b)). “[I]t matters not that there is ‘substantial overlap’ in the evidence used to prove the two offenses, so long as they involve different statutory elements.”
Kimbrew,
Overton does not argue that a
Blockburger
analysis produces a contrary finding regarding congressional intent. Rather, citing our decisions in
United States v. Keen,
Overton’s argument is unsound. The
Blockburger
test plainly applies to our review of the offenses in question. Because § 2251(a) and (b) are, without question, separate statutory provisions,
Keen
and
Zalapa
are inapposite. Those cases, like others upon which Overton mistakenly relies, involve multiple convictions based on a single statutory provision. The defendant in
Keen
was convicted on two counts of violating 18 U.S.C. § 922(g)(1), for simultaneously possessing a firearm and its ammunition.
The applicability of the
Blockburger
test is well-established and courts, including ours, universally apply it in situations like the instant one — -where a defendant was convicted under separate statutory provisions.
See, e.g., Davenport,
2
Nothing in the legislative history of 18 U.S.C. § 2251 conclusively discloses “an intent contrary to the presumption which should be accorded to these [statutory provisions] after application of the
Blockburger
test.”
Albernaz,
Bell,
like
Keen
and
Zalapa,
discussed
supra,
is a case where separate statutory provisions were not at issue.
Bell,
On this point, we need only look to the Supreme Court’s decision in
Albemaz
to
*694
untangle Overton’s flawed logic. The statutory offenses at issue there — i.e., conspiracy to import marijuana, 21 U.S.C. § 963, and conspiracy to distribute marijuana, 21 U.S.C. § 846 — “clearly satisfied] the rule announced in
Blockburger
and [the defendants did] not seriously contend otherwise.”
In a way, the
Blockburger
test determines who must come forward with the clear legislative intent.
12
Because the analysis with regard to § 2251(a) and (b) indicates that multiple punishment is permissible, that burden falls upon Overton to present a “clearly expressed legislative intention to the contrary.”
Albernaz,
Our independent review of the legislative history has similarly failed to unearth anything conclusive in Overton’s favor. Rather, in enacting the legislation, Congress contemplated § 2251(a) and (b) as unique and separate crimes. See, e.g., S.Rep. No. 95-438, at 15-16, 20, as reprinted in 1978 U.S.C.C.A.N. 40, 53-54, 57-58 (separately discussing conduct that would constitute each federal crime); Id. at 61 (“Adults who permit children to participate in these activities play an essential role in the production process somewhat akin to the supplier of an essential material.”). The legislative history strengthens our conclusion under Blockburger that Congress intended § 2251(a) and (b) to constitute separate offenses for which multiple punishment is permissible, especially in egregious situations like the instant case. See id. at 46 (recognizing that in “the worst cases, the parents themselves lead the children into this depravity.”). 13
*695 We hold that § 2251(a) and (b) are separate offenses and multiple punishments based on the same act or transaction do not violate the Double Jeopardy Clause of the Fifth Amendment. Overton’s convictions on Counts I and II are not constitutionally barred, and the district court properly denied his post-conviction motion to dismiss on that ground.
B
Overton also contends that his conviction on Count III, receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(2), and Count IV, possession of-child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), infringe upon his constitutional right against double jeopardy. It has been established that “the offense of possessing child pornography is a lesser included offense of the receipt of child pornography.”
Davenport,
Here, whether Overton’s conviction for both receipt and possession of child pornography offends the Fifth Amendment’s protection against double jeopardy depends on whether the “conduct underlying both offenses is the same.”
Id.
at 942;
accord United States v. Kuchinski,
*696
Schales,
for example, involved a similar double jeopardy challenge to a conviction for both possession and receipt of contraband images.
Schales appealed his conviction, claiming, among other things, a double jeopardy violation. After combing the indictment, jury instructions, and verdict form, we were unable to confidently conclude whether separate conduct formed the bases for the receipt and the lesser included possession offenses.
Id.
at 979-80 (“On this record, we cannot conclude that Schales was convicted of separate conduct.”). Indeed, it was particularly noteworthy that the prosecution had argued to the jury that conviction on both counts could be based “solely on one image.”
Id.
at 980. We held that Schales’s double jeopardy rights were violated and remanded the case to the district court to vacate either the receipt or the possession conviction.
Id.
at 977, 980-81;
accord United States v. Brobst,
Our record, in contrast, is sufficiently developed and we are able to definitively conclude that Overton’s receipt and possession convictions arose from separate misdeeds. On appeal, Overton concedes that his conduct in relation to JNW is distinct from his conduct relating to the Internet child pornography. He argues, however, that Judge Molloy, sitting in place of the jury, did not rely on the homemade images with respect to Counts III and IV, but instead premised both his receipt and possession convictions solely on “the same images” — i.e., the child pornography he downloaded from the Internet to his home and work computers. Not so. The record, in our view, plainly reveals otherwise.
In Schales, we reviewed a jury verdict and therefore undertook the formidable task of probing the record to determine the factual predicate for the defendant’s conviction. Our task here, by contrast, is considerably simpler because we review a bench trial conviction. We are furnished with direct access to the written findings and conclusions of the trier of fact and therefore need not resort to scrutinizing the indictment or jury forms in an effort to surmise what formed the basis of each conviction. 16 Here, the trier of fact has spoken with a clear voice.
*697 Overton made the same double jeopardy argument he presents to us in his post-conviction motion to dismiss. The district court denied Overton’s motion and, in doing so, left no doubt that the receipt and possession convictions were based on separate conduct, stating “the Court did not rely on the same act to establish both Overton’s receipt and possession of child pornography.” Whereas “Overton’s conviction for receipt of child pornography [was] based on the fact that Overton searched for child pornography on the Internet using search words including ‘teen,’ and then viewed and downloaded some of the images returned as a result of his searches,” his conviction for possession was based not only on the downloaded images but also “on his possession of the three sexually explicit photographs he took of his minor step daughter....” In other words, Judge Molloy — the trier of fact who considered the evidence and returned the guilty verdict — confirmed that he had based the possession conviction in part on Overton’s illicit photographs of JNW. Only rarely can we expect to find such a clear and decisive answer in an appellate record.
We find further confirmation that the possession conviction was based on separate conduct. Judge Molloy made detailed factual findings regarding Overton’s retention of the digital photographs, going so far as to specify the file folder names within which he stored the homemade images. The findings also track Overton’s conduct in deceiving his wife into believing he destroyed the images of JNW while, in reality, he shuttled them between his work and home computers. Further, in his written conclusions regarding the possession (but not the receipt) conviction Judge Molloy included credibility determinations, finding JNW “a credible witness,” Overton “not believable or credible,” and Nelson “biased” in her husband’s favor. He also found that the items used to produce the pictures of JNW had been transported in interstate or foreign commerce — a finding likewise included in connection with the possession (but not the receipt) conviction. The only logical conclusion to draw from the district court’s express findings is that the possession offense encompassed Over-ton’s conduct with respect to the illicit images of his stepdaughter. Overton makes no effort to persuade us otherwise, except to simply turn a blind eye to an unsupportive record.
We also reject Overton’s argument that both convictions cannot be premised, as a matter of principle, on “the same images.” The federal criminal offenses at issue punish conduct, and nothing precludes downloaded images from supporting conviction on multiple counts.
See United States v. Planck,
Applying this principle to the instant case, Overton’s dual convictions could also be premised solely on his collection of downloaded child pornography. The district court made express findings that on many separate occasions Overton used his home and work computers to download images of minors engaged in sexually explicit conduct, which he thereafter knowingly possessed in different physical media, including at least one computer hard drive and one computer disk. Under our precedent, the transfer and storage of previously-downloaded Internet images — to a memory card or diskette, for example— describes conduct separate from the act of downloading pornography and may thus provide sufficient independent basis for a possession conviction. Overton’s double jeopardy argument fails on this ground as well.
As the record reveals, the district court did not unlawfully convict Overton of both receipt and the lesser included possession offenses based on the same conduct. Overton created sexually explicit photographs of his stepdaughter JNW, which he thereafter stored in various locations. This conduct is separate and distinct from perusing Internet porn sites and downloading images to his home and work computers. The instant case is therefore distinguishable from prior cases where we have found constitutional infirmities. Overton’s conviction for both receipt and possession of child pornography steers clear of the Fifth Amendment’s prohibition against double jeopardy.
IV
Finally, Overton challenges the sentencing determination. He does not dispute the district court’s Sentencing Guidelines computations, and he concedes that the 235-month sentence imposed was within, albeit at the upper end of, the Guidelines range. He nevertheless contends that the district court failed to adequately consider the factors of 18 U.S.C.
*699
§ 3553(a) and imposed a “one-size fits all” sentence that was too harsh under the circumstances. There is a procedural as well as a substantive element to this argument. “On appeal, we first consider whether the district court committed significant procedural error, then we consider the substantive reasonableness of the sentence.”
United States v. Carty,
A
Overton alludes to procedural error by accusing the district court of failing to address the § 3553(a) factors and adequately explain the sentence imposed. We disagree. Judge Molloy discussed at length the basis for the within-Guidelines sentence, properly articulated the role of both the Guidelines and the § 3553(a) factors, and referenced the various considerations that weighed into the sentencing determination. Among other things, Judge Molloy contemplated on the record “a need for the sentence imposed to reflect the seriousness of the offense and to promote a respect for the law and to provide just punishment for the offense,” “the need to afford adequate deterrence to criminal conduct,” the lasting harm imposed on the victim, the ongoing threat Overton posed to children, his need for treatment in a sex offender program, as well as the goal of avoiding sentence disparities for similar offenses.
The district court diligently satisfied its obligations at sentencing.
See United States v. Diaz-Argueta,
As the Supreme Court has recognized, “[w]hen a judge decides simply to apply the Guidelines to a particular case, doing so will not necessarily require lengthy explanation.”
Rita v. United States,
We further note that Overton’s argument for a low-end sentence, which was primarily based on his alleged good character, was straightforward and uncompli
*700
cated. Thus, a thorough explanation by the court was not required.
See Rita,
In sum, the record before us more than sufficiently demonstrates that the district court heard and considered Overton’s arguments, contemplated the § 3553(a) factors, and reached an informed conclusion regarding sentencing. The sentencing judge gave no indication that he felt bound by the Guidelines range or presumed it reasonable. He certainly “set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority.”
Rita,
B
Second, Overton claims the 235-month sentence was substantively unreasonable. We consider the substantive reasonableness of a sentence under the deferential abuse of discretion standard.
Gall v. United States,
Here, after considering the totality of the circumstances, the district court imposed a 235-month sentence, at the high end of the Guidelines range. As discussed supra, it is readily apparent from the record that the district court considered the § 3553(a) factors in determining an appropriate sentence for Overton. On appeal, Overton simply reargues the leniency argument he made before the district court. Frankly, given the severity of Overton’s misdeeds and his unwillingness or inability to sufficiently recognize the gravity of his actions, we find Overton’s mitigating evidence substantially underwhelming. 17 We, like the district court, find significant “the nature and circumstances of the offense and the history and circumstances of Walter Merle Overton,” including, but not limited to, Overton’s undeterred recidivism, the seriousness and depravity of his ac *701 tions with his stepdaughter, his admitted “addiction” to pornographic material and conduct damaging to children, and the evidence of what can fairly be described as “grooming” proclivities.
In short, Overton offers nothing that persuades us that the Guidelines sentence imposed by Judge Molloy was substantively unreasonable. The statutory maximum was 30 years. 18 U.S.C. § 2251(e). Here, we can easily conclude that a high-end Guidelines sentence of 235 months was reasonable. The district court did not abuse its discretion at sentencing.
V
For the foregoing reasons, we affirm Overton’s conviction and sentence on all grounds. First, we find no error in the district court’s finding that Exhibits 6-2, 6-4, and 6-5 portray the lascivious exhibition of the genitals or pubic area and therefore depict “sexually explicit conduct.” Viewing the evidence in the light most favorable to support the conviction, a rational trier of fact could have found the essential elements of the sexual exploitation counts beyond a reasonable doubt. Second, because there is no clearly expressed legislative intention to the contrary, the Blockburger test conclusively demonstrates that violations of § 2251(a) and (b) constitute separate offenses for which Congress authorizes multiple punishments. Accordingly, Overton’s conviction on separate sexual exploitation counts is constitutionally permissible. Third, the record on appeal demonstrates that Over-ton’s conviction for receipt and the lesser included possession of child pornography was based on separate conduct and therefore does not violate his Fifth Amendment double jeopardy rights. Finally, the distinct court did not commit procedural error or abuse its discretion in imposing the within-Guidelines sentence.
AFFIRMED.
Notes
. At all times material to this appeal, JNW lived with her mother and Overton at their home in Manhattan.
. JNW testified at trial that Overton entered her room and told her that this could either "be an enjoyable experience or a life threatening one.”
. Overton was initially charged with incest in Gallatin County state court. The state charges were dismissed in favor of this federal prosecution.
. The statutory ranges were 15 to 30 years on Counts I and II, the sexual exploitation of a minor offenses; 5 to 20 years on Count III, the receipt of child pornography conviction; and not more than 10 years on Count IV, the possession conviction.
. The October 2008 amendments expanded the scope of § 2251(a) and (b) by inserting additional language to prohibit the transmission of live images of sexually explicit conduct. We quote to the version of § 2251 in effect at the time of Overton’s conviction. 18 U.S.C. § 2251 (2006).
. As relevant to the counts here, the term “sexually explicit conduct” is defined by 18 U.S.C. § 2256(2)(A) to mean "actual or simulated — (i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; (ii) bestiality; (iii) masturbation; (iv) sadistic or masochistic abuse; or (v) lascivious exhibition of the genitals or pubic area of any person.”
. We have examined the same evidence admitted by the district court and we see no reason to overturn the factual findings under the rule set down in Jackson v. Virginia for appellate review of sufficiency challenges. We note that our determination regarding the applicable standard of review, while important to the soundness of our appellate function, is not outcome-determinative in this particular case. Application of the broader de novo review would lead us to the same result.
. On appeal, Overton insists that the district court wrongly "supposed that JNW was in poses suggested by Mr. Overton.” He denies doing so and contends that "he just took the photos of her naked.” This claim, even if true, is not compelling. In any event, Over-ton's contention belies the evidence presented at trial. The district court found JNW to be a credible witness, while it found Overton not credible. The district court's ruling on the credibility of a witness is entitled to substantial deference.
United States v. Jordan,
.
But see United States v. Threadgill,
. In cases where
Blockburger
does not apply, courts look elsewhere for congressional intent to determine the allowable unit of prosecution,
see Keen,
. We recognize that, while he cites
Keen
extensively, Overton’s argument is based on language from a footnote in
Zalapa. See Zalapa,
. Even if we were to conclude that the Blockburger test did not apply, we would still need to determine whether Congress intended to authorize multiple punishments for a single act or transaction. In such a case, however, the Government would shoulder the burden of presenting clear legislative intent to overcome the rule of lenity.
. Overton’s argument that § 2251(a) and (b) are not "directed to separate evils” is also not compelling. To say that both offenses target "the exploitation of children” is to define the *695 undesired "evil” far too broadly. Under this view, a vast array of statutory offenses, including, for example, child prostitution, another issue addressed by the same legislation, would also be included. See S.Rep. No. 95-438, at 16-17, as 'reprinted in 1978 U.S.C.C.A.N. 40, 54-55. Rather, the legislative history references the separate evils of targeting minors for use in the production of materials that depict sexually explicit conduct and of knowingly permitting the use of minors in such depravity by persons with legal control over the minor.
. The term "child pornography” is defined by 18 U.S.C. § 2256(8), to mean:
[A]ny visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where—
(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;
(B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or
(C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.
. We note that Judge Molloy’s order denying Overton’s post-conviction motion to dismiss preceded the issuance of our opinions in Davenport, Schales, and other recent cases. *696 Therefore, neither the district court nor the parties had the guidance of our current precedent when addressing the double jeopardy issue.
. We have, however, reviewed the indictment to determine whether it forecloses relianee on certain images with respect to the possession offense. It does not. Count IV charges as follows:
That on or about 2004 and continuing until June 5, 2006, at Manhattan and Bozeman, in the State and District of Montana, and *697 elsewhere, the defendant, WALTER OVER-TON, knowingly possessed numerous computer files containing an image or images or movies of child pornography that had been mailed, shipped, or transported in interstate or foreign commerce by any means, including by a computer located at 8166 Frontage Road, Manhattan, and computers at the MSU-Bozeman Campus, Bozeman, Montana and other locations or that was produced using materials that had been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer, in violation of 18 U.S.C. § 2252A(a)(5)(B).
Quite clearly, the indictment leaves open the possibility that conviction might be premised on the pictures he produced, and not merely the downloaded images. Therefore, nothing precluded Judge Molloy from finding Overton guilty of unlawful possession because he retained the photographs of his stepdaughter.
. Overton spoke on his own behalf at the sentencing hearing and described his illicit conduct with JNW as a battle of competing priorities.