United States v. Frank Burn

Filing

OPINION FILED - THE COURT: James B. Loken, C. Arlen Beam and Lavenski R. Smith AUTHORING JUDGE:James B. Loken (PUBLISHED) [4440240] [15-2660]

United States Court of Appeals
For the Eighth Circuit
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No. 15-2660
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Frank Todd Burns
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Des Moines
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Submitted: April 14, 2016
Filed: August 23, 2016
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Before LOKEN, BEAM, and SMITH, Circuit Judges.
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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

1

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

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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
deference” because they are “politically-motivated mandates” by Congress that are
“not supported by empirical data.” Burns presented this argument to the district court,
which rejected 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 court; 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 (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 of 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 (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
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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 called
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 contact 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 enhancements: a 4-level increase for possession of sadistic
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images, § 2G2.2(b)(4); a 5-level increase for engaging in “a pattern of activity
involving the sexual abuse or exploitation of a minor,” § 2G2.2(b)(5); and a 2-level
increase for an offense that “involved the use 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, denying 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 service.”
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
guidelines 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 pattern 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 or 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 abuse 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
knowingly engaging in a sexual act with a person who “has attained the age of 12
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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
“inappropriately 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 reasoned
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 damaged 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 caused a decade’s worth of
“pain, heartache and suffering.” The court further emphasized the “unusual fact” that
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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 the 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.
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