United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-1923
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
James Wensel, Jr., *
* [UNPUBLISHED]
Appellant. *
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Submitted: January 13, 2010
Filed: February 23, 2010
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Before MURPHY and BYE, Circuit Judges, and STROM,1 Senior District Judge.
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PER CURIAM.
The district court2 sentenced appellant James Wensel to 235 months of
imprisonment for violating 18 U.S.C. § 2252(a)(2), which criminalizes trafficking of
child pornography. Wensel appeals the district court’s application of a seven-level
1
The Honorable Lyle E. Strom, Senior District Judge for the District of
Nebraska, sitting by designation.
2
The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa.
enhancement, pursuant to U.S.S.G. § 2G2.2(b)(3)(E), and the district court’s refusal
to grant a sentence below the Guidelines’ recommendation.
The Court examines de novo the applicability of a sentencing enhancement,
while reviewing for clear error the district court’s factual determinations underlying
the application of a sentencing enhancement. United States v. Branch, ___ F.3d ___,
2009 WL 5125210, *7 (8th Cir. Dec. 30, 2009) (publication forthcoming). Under the
Guidelines, a sentence for child pornography trafficking is enhanced by seven levels
“if the offense involved . . . [d]istribution to a minor that was intended to persuade,
induce, entice, or coerce the minor to engage in prohibited sexual conduct.” U.S.S.G.
§ 2G2.2(b)(3)(E). The Court finds no error in the district court’s findings that
Wensel’s conduct -- which included distributing child pornography photographs,
videos of himself masturbating in front of a web camera, and sexually explicit
language to (what Wensel thought) were thirteen and eleven year old girls -- evinced
an intent to persuade a minor to engage with Wensel in prohibited sexual conduct.
Accordingly, U.S.S.G. § 2G2.2(b)(3)(E) is clearly applicable.
Wensel also challenges the reasonableness of his 235-month sentence. The
Court undertakes a two-step analysis in reviewing a sentence. First, the Court must
determine whether the district court committed a significant procedural error in
determining Wensel’s sentence. United States v. Sawyer, 588 F.3d 548, 555 (8th Cir.
2009) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). Then, if no significant
procedural errors are found, the Court reviews “the substantive reasonableness of the
sentence imposed under an abuse-of-discretion standard.” Sawyer, 588 F.3d at 555
(quoting United States v. Robinson, 516 F.3d 716, 717 (8th Cir. 2008)).
Wensel argues the district court committed a significant procedural error by
relying on inaccurate or misconstrued information in Wensel’s presentence
investigation report. A significant procedural error can occur if the district court
selects a sentence based on clearly erroneous facts. Gall, 552 U.S. at 51. Upon
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reviewing the record, the Court finds the district court did not clearly err in its factual
findings.
Furthermore, the Court finds the district court did not abuse its discretion in
imposing a 235-month sentence upon Wensel. The district court properly analyzed the
factors to be considered in imposing a sentence, see 18 U.S.C. § 3553(a), and there is
nothing to indicate the district court considered the Guidelines mandatory. See United
States v. Clay, 579 F.3d 919, 930 (8th Cir. 2009). Thus, the Court finds Wensel’s
sentence was substantively reasonable. See United States v. Lincoln, 413 F.3d 716,
717 (8th Cir. 2005) (stating appellant courts may find a sentence presumptively
reasonable if the sentence falls within the Guidelines’ recommended range).
The sentence of the district court is AFFIRMED.
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