United States Court of Appeals
For the Eighth Circuit
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No. 13-2441
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Anthony Boyd Conklin
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Davenport
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Submitted: December 16, 2013
Filed: June 2, 2014
[Unpublished]
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Before MURPHY, BYE, and SMITH, Circuit Judges.
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PER CURIAM.
Anthony Conklin possessed a large child pornography collection. Additionally,
he engaged in sexually explicit behavior with two minors. Undeterred by police
seizure of his computer, he continued to collect child pornography. Conklin pleaded
guilty to one count of receiving and distributing child pornography, in violation of
18 U.S.C. § 2252(a)(2). The district court1 sentenced him to the statutory maximum
of 240 months' imprisonment, followed by a ten-year term of supervised release.
Conklin challenges his sentence as substantively unreasonable. For the reasons stated
below, we affirm.
I. Background
In 2011, law enforcement officials seized and searched Conklin's computers.
The search disclosed a child pornography collection consisting of thousands of
images and hundreds of videos and involving minors ranging in age from three to
seventeen years old. Conklin admitted to possessing the prohibited images and
videos.
In addition to accumulating a large child pornography collection, Conklin
chatted with a twelve-year-old girl and recorded web camera footage of the child
engaging in sexual conduct on at least three occasions. On another occasion, he took
screen captures of a thirteen-year-old girl engaged in sexual conduct.
After the seizure of the computers in 2011, but before completion of a forensic
analysis of their contents, Conklin acquired two new computers to replace those that
were initially seized by law enforcement. He continued to view and download child
pornography. He was arrested in 2012 and again admitted to his criminal behavior.
Law enforcement attributed more than 8,000 images and 900 videos of child
pornography to Conklin.
The government filed a two-count indictment against Conklin, charging him
with Receiving and Distributing Child Pornography, in violation of 18 U.S.C.
1
The Honorable James E. Gritzner, Chief Judge, United States District Court
for the Southern District of Iowa.
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§ 2252(a)(2) ("Count I"), and Possession of Child Pornography, in violation of 18
U.S.C. § 2252(a)(4)(B) ("Count II"). Conklin pleaded guilty to Count I. In exchange
for Conklin's plea, the government dismissed Count II.
The statutory sentencing range for Count I is five to twenty years'
imprisonment, followed by a term of supervised release of five years to life
imprisonment. 18 U.S.C. § 2252(b)(1). The district court calculated a Guidelines
range of 292 to 365 months' imprisonment based on an offense level of 40 and a
criminal history category of I. Because the 240 months statutory maximum falls
below that range, the Guidelines range became 240 months. The district court then
sentenced Conklin to 240 months' imprisonment, followed by ten years of supervised
release.
II. Discussion
"We review the substantive reasonableness of [Conklin]'s sentence for
abuse of discretion. We must first ensure that the district court
committed no significant procedural error. If no significant procedural
error is found, we then consider the totality of the circumstances in
determining if an abuse of discretion occurred. A sentence within the
advisory guidelines range is presumptively reasonable on appeal."
United States v. Pappas, 715 F.3d 225, 229–30 (8th Cir. 2013) (internal citations and
quotation omitted).
Conklin raises two principal arguments on appeal, neither of which we find
persuasive. First, he contends that the child pornography he produced was merely
"incidental to [his] overall criminal conduct" and therefore should not have triggered
the U.S.S.G. § 2G2.1 cross-reference for the production of child pornography. Rather,
he argues, his real crime was the downloading of vast amounts of child pornography.
Second, he avers that he does not pose a danger to the public in general or to minor
females in particular. Conklin admits to being addicted to child pornography. He
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believes the appropriate sentence should focus on treatment, not "incapacitation to
protect minor females."
Conklin's first argument—that production represents such a small portion of
his conduct that § 2G2.1 should not have applied—is an inaccurate characterization
of the facts and without authority. Simply put, the supposed incidental nature of his
sexually explicit recordings of two adolescent girls in relation to his prodigious
pornography collection does not diminish its seriousness. Conklin essentially
contends that he was much more interested in possessing child pornography than
producing it. This fact, however, does not mitigate the heinousness of the production.
His conduct exceeded mere possession and appropriately received greater
punishment. The district court did not err in invoking the Guidelines cross-reference.
Conklin's second argument—that he is an addict requiring treatment, and not
a predator requiring incapacitation—is equally unpersuasive. Although he may be an
addict, his failure to control his behavior also makes him a criminal. Nor does his
status as an addict persuade us that the district court erred in its sentencing decision.
Conklin raises a number of other objections to his sentence. We have
considered them and find them meritless as well. Conklin received the statutory
maximum, which was more than four years below the Guidelines recommendation.
Taking into account the characteristics of the crime and the offender, we hold that
Conklin's sentence is not substantively unreasonable.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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