(D.C. No. 2:09-CR-20073-KHV-1) (D. of Kan.)
Before TYMKOVICH, EBEL, and HOLMES, Circuit Judges.
ORDER AND JUDGMENT [*]
Timothy M. Tymkovich Circuit Judge
David Huffman pleaded guilty to possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). In deciding not to impose the ten-year sentence based on the United States Sentencing Guidelines (USSG), the district court sentenced Huffman to a five-year term of probation, the terms of which he violated within eighteen months of imposition. At a hearing to address these violations, the district court revoked his probation and sentenced him to ten years' imprisonment, applying the sentencing guideline range recommended in the Presentence Investigation Report (PSR).
Huffman appeals this sentence, arguing only that it is substantively unreasonable. We find no error in the district court's application of its sentencing discretion. Accordingly, exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM.
Huffman was discovered by Kansas law enforcement in possession of child pornography. Using a file sharing service, a detective was able to download three videos depicting minors engaged in sexually explicit conduct and linked the IP address to a residence where Huffman lived.
His residence was searched, where law enforcement located in Huffman's bedroom the computer from which the videos in question were downloaded. When confronted about the downloads, Huffman admitted he had installed a computer program on his computer and had used the program to download music, wrestling videos, and pornography. A subsequent search of Huffman's computer revealed that it contained child pornography.
A grand jury indicted Huffman on one count of distribution and one count of possession of child pornography. Huffman was arrested and released on bond. As relevant here, the terms of his pretrial release included a requirement that Huffman submit to GPS monitoring of his movements and that he refrain from viewing any form of pornography. Huffman had continual problems complying with these conditions.
Huffman pleaded guilty to the child pornography possession charge in February 2010. He entered into a plea agreement in which the government agreed that it would dismiss the pornography distribution charge and that Huffman be sentenced to a term of 60 months' probation with no term of imprisonment. As a condition of the probation, Huffman had to enroll and successfully complete the Long Term Residential Recovery and Rehabilitation Program at the City Union Mission in Kansas City, Missouri. The plea agreement was, of course, subject to the approval of the district court at Huffman's sentencing hearing.
The probation office recommended that the district court follow the guideline range of ten years. In advance of the sentencing hearing, the office prepared a PSR for Huffman. The PSR first recounted the offense conduct relevant to sentencing, which included the three child pornography videos downloaded in February 2008. Further, the PSR stated that Huffman himself admitted to downloading two additional child pornography videos, though he stated that he immediately deleted them when he discovered they were of child pornography.
The PSR then noted that a forensic examination of Huffman's computer revealed further child pornography images. The summary of the forensic analysis in the PSR states:
The forensic examination of the defendant's computer revealed approximately 19 (.jpg/.jpeg) images, 8 (.mpg) images, five video files (which lasted approximately 3 minutes 30 seconds; 14 minutes 30 seconds; 3 minutes; 2 minutes; and 20 seconds, respectively), and one video file that contained numerous videos and images combined into one streaming program. This video lasted approximately 29 minutes. These images contained pictures of minors who had not attained the age of 12 years, as well as material that portrayed sadistic or masochistic conduct, or other depictions of violence.
R., Vol. 3, at 9.
The PSR therefore attributes to Huffman 27 child pornography images and between six and eleven child pornography videos. Huffman raised no objection to the offense conduct described in this portion of the PSR, and raised no objection to a later PSR finding that he had downloaded 600 images (with each video counting as 75 images).
The PSR further notes that Huffman, who was 18 years old at the time when the offense conduct occurred, "indicated he is most interested in pornography involving females who are 18 to 20 years old." Id. at 8. He further emphasized he "is not attracted to girls under the age of 14 and believes pornography depicting pre-pubescent girls is 'wrong, '" but nevertheless "admitted to having used terms such as 'young, ' 'teen, ' 'barely legal, ' and 'real young teens' to locate files to download using [a file-sharing program]." Id. at 9. Huffman also conceded he "occasionally download[ed] child pornography files, which he usually deleted once he realized what type of file they were." Id.
Under USSG § 2G2.2, the base-level offense for possession of child pornography is 18. The PSR started at this level and recommended the following enhancements based on Huffman's specific offense conduct: (1) a two-level enhancement because the offense involved a prepubescent minor; (2) a five-level enhancement because the offense involved the distribution for the receipt or expectation of receipt of a thing of value; (3) a four-level enhancement because Huffman possessed material portraying sadistic or masochistic conduct or other depictions of violence; (4) a two-level enhancement because the crime involved the use of a computer; and (5) the aforementioned five-level enhancement for possession of over 600 images.
Finally, the PSR recommended a three-level downward adjustment for acceptance of responsibility and for entering a timely plea, which meant the PSR concluded Huffman's final offense level was 33. Given Huffman's criminal history category of 0, the PSR determined this offense level yielded a guideline range of 135 to 168 months. Nevertheless, because the statutory maximum for Huffman's crime was ten years, the PSR concluded that the guideline range was 120 months. See 18 U.S.C. § 2252(b)(2); USSG § 5G1.1(c)(1). Huffman has never presented any objections to the calculation of his sentence or the application of any of the enhancements. And he has conceded that his proper guidelines range is 120 months. See Aplt. Br. at 17.
Just before his sentencing hearing, Huffman was arrested for violations of the terms of his pretrial release. The probation office alleged Huffman had not complied with its GPS monitoring requirements, had possessed a cell phone without informing his probation officer, and had received text messages containing adult pornography on the phone. At his bond revocation hearing, Huffman admitted to these ...