United States Court of Appeals
For the Eighth Circuit
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No. 15-2378
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Kevin Andrew Jauron
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: April 15, 2016
Filed: August 10, 2016
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Before COLLOTON and SHEPHERD, Circuit Judges, and MOODY1, District
Judge.
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SHEPHERD, Circuit Judge.
Kevin Jauron pled guilty to sexual exploitation of children in violation of 18
U.S.C. § 2251(a) and (e), and to commission of a felony offense involving a minor
1
The Honorable James M. Moody, Jr., United States District Judge for the
Eastern District of Arkansas, sitting by designation.
while being required to register as a sex offender in violation of 18 U.S.C. § 2260A.
The district court2 sentenced Jauron to 480 months’ imprisonment. Jauron appeals
his sentence, arguing that the district court committed reversible error in its
application of the United States Sentencing Guidelines (“U.S.S.G.”) and imposed a
substantively unreasonable sentence in light of the 18 U.S.C. § 3553(a) factors. We
have jurisdiction under 28 U.S.C. § 1291 and affirm.
I.
Jauron was convicted in Iowa state court of third-degree harassment twice in
2005 after sending sexual emails to females, including one minor. In 2008, he was
convicted in Iowa state court of second-degree harassment and assault causing bodily
injury after digitally penetrating the vagina of a fifteen-year-old female. As a result
of that conviction, Jauron was required to register as a sex offender.
In May 2014, the Marion, Iowa police department received a report from a
local high school alleging that, via text message, an adult male named “Kevin” had
solicited A.R. and S.M., two fifteen-year-old females, to engage in sexual activity.
Officers subsequently determined Jauron to be “Kevin” and obtained a search warrant
for both Jauron’s person and residence. Further investigation, including execution
of the search warrant, interviews with Jauron, and interviews with multiple minor
females, revealed the following facts.
Jauron created a false identity of “Shelbi Bartling,” purportedly a seventeen-
year-old bisexual female, then used that facade to meet A.R. and introduce her to
“Kevin.” As “Kevin,” Jauron sent A.R. images of himself engaging in sexual acts
with females as well as images of his penis. He had sexual intercourse with A.R. on
2
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
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March 13, 2014, and produced two videos and five still images of the activity. Jauron
sent those images to S.M. and a thirty-five-year-old male on March 24, 2014. Jauron
also used the “Shelbi Bartling” identity in February 2014 while texting S.W., another
fifteen-year-old female. Posing as “Shelbi Bartling,” Jauron convinced S.W. to send
him nude photographs. After S.W. sent some nude photographs, Jauron asked for
more, specifically photographs of her vaginal area with her legs spread apart. S.W.
complied with the request.
In 2012, Jauron posed as “Evan,” a false identity under which he purported to
be a nineteen-year-old male from another state, and asked L.M. to take nude
photographs of herself. Specifically, “Evan” used the Kik messenger app3 to ask
L.M., a fourteen-year-old female, to photograph herself while touching her vagina or
inserting one of her fingers into her vagina, and send the photographs to him. L.M.
subsequently learned that “Evan” lied about his identity and was in fact an older male
named “Kevin.” “Kevin” again asked L.M. to take nude photographs of herself
touching her breasts and vagina, then message the photographs to him. In response,
L.M. sent “Kevin” a nude photograph that depicted her with her shirt pulled up and
her pants pulled down, displaying her breasts and vagina. She also sent “Kevin”
photographs of herself touching her vagina. Jauron also created a group Kik message
between “Kevin,” “Shelbi Bartling,” and L.M., in which he sent L.M. photographs
of “Shelbi” touching herself and attempted, while posing as “Shelbi Bartling,” to
convince L.M. to “hang out with her and Kevin.”
3
Kik is a free app available on most mobile platforms and “allows people to
find strangers and communicate with them anonymously, through a user name.”
Sheryl Gay Stolberg & Richard Perez-Pena, App Provides Anonymity to Tennagers,
and to Predators, Too, N..Y. Times Feb. 5, 2016, at A1, 3. Kik has approximately 275
million registered users worldwide. Id. The app asks for the user’s real name and
email address, but does not require the user to provide a telephone number and works
even if the information provided is false. Id.
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Jauron met K.W., a fifteen-year-old female, at an adult shop and sent her
pictures of his penis via text message in August 2013. Jauron texted K.W. multiple
times between August 2013 and December 2013, offering her money to engage in
sexual intercourse with him. In December 2013, Jauron took K.W. to his house in
Marion, Iowa and engaged in sexual intercourse with her. Jauron later referenced a
recording of their sexual activity in a text message to K.W., but at the time of their
sexual encounter, she was unaware that it was being recorded.
In January 2014, Jauron solicited a seventeen-year-old female, H.W., to meet
with him and other adult males for the purpose of all the males having sex with H.W.
and producing videos and images of the activities. Jauron then met with one or more
other adult males and H.W., and used his phone to produce videos and still images
of the men engaged in various sexual acts with H.W. Jauron later sent some of the
images of H.W. performing sexual acts via text message to other people.
Pursuant to a plea agreement, Jauron pled guilty in January 2015 to sexual
exploitation of children in violation of 18 U.S.C. § 2251(a) and (e), and commission
of a felony offense involving a minor while being required to register as a sex
offender in violation of 18 U.S.C. § 2260A. On June 11, 2015, the district court held
a sentencing hearing, at which it accepted the United States Probation Office’s
calculation of the Sentencing Guidelines as set forth in the presentence report
(“PSR”). After enhancements, the guidelines calculations for each victim were:
Group 1, victim A.R., level 40; Group 2, victim S.W., level 36; Group 3, victim L.M.,
level 38; and Group 4, victim H.W., level 42. The district court did not include K.W.
as a victim at sentencing. Applying U.S.S.G. § 3D1.4, the district court used the
offense level of 42 from Group 4, victim H.W., then increased the offense level,
based on the seriousness of the offenses from the other groups, for a combined
adjusted offense level of 48. Pursuant to Guidelines Chapter 5, Part A, commentary
note 2, a total offense level greater than 43 is to be treated as an offense level of 43,
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the highest offense level accounted for in the sentencing table, so the district court
treated Jauron’s offense level as a 43.
Jauron objected to “the scoring and inclusion of any and all” events relating to
S.W. and L.M. as part of the offense level computation, as well as the four-level
enhancement applied to H.W. under U.S.S.G. § 2G2.1(b)(4) for sadistic or
masochistic conduct. Under Jauron’s calculation, Group 1, victim A.R., would have
produced the highest offense level, 40. Combined only with Group 4, victim H.W.,
and additional enhancements and reductions to which he did not object, Jauron’s
calculation yields a total offense level of 44. Therefore, under Jauron’s computation,
the total offense level would have been treated as a 43 pursuant to Chapter 5, Part A,
commentary note 2. The district court recognized the total offense level would be
treated as a 43, with life imprisonment as the normal guideline sentence. Given the
statutory maximum sentences of thirty years for Count One of sexual exploitation of
children and ten years for Count Two of commission of a felony offense involving
a minor while being required to register as a sex offender, the district court sentenced
Jauron to 360 months on Count One and 120 months on Count Two, totaling a
sentence of 480 months’ imprisonment. The district court also stated that it would
impose the same sentence regardless of how the advisory guidelines were computed.
This sentencing appeal followed.
II.
On appeal, Jauron first contends that the district court committed reversible
error in its application of the Guidelines. Specifically, he challenges the district
court’s inclusion of S.W. and L.M. as victims for purposes of the advisory guideline
calculation and the application of U.S.S.G. § 2G2.1(b)(4) for sadistic or masochistic
behavior regarding H.W. “We review the court’s interpretation and application of the
Guidelines de novo and its factual findings for clear error.” United States v.
Thunderhawk, 799 F.3d 1203, 1209 (8th Cir. 2015).
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Section 2G2.1(d)(1) governs the sexual exploitation of a minor by production
of a sexually explicit visual or printed material and provides that “[i]f the offense
involved the exploitation of more than one minor, Chapter Three, Part D (Multiple
Counts) shall be applied as if the exploitation of each minor had been contained in
a separate count of conviction.” Jauron contends this Special Instruction should not
allow S.W. and L.M. to be counted as minor victims of his sexual exploitation
because no “sexually explicit conduct” occurred under the meaning given to that
phrase by 18 U.S.C. § 2256(2). The “lascivious exhibition of the genitals or pubic
area of any person” is a form of sexually explicit conduct. 18 U.S.C.
§ 2256(2)(A)(v). Jauron further argues that the sexual activities displayed in the
videos of H.W. are not sadistic or masochistic behavior, and that the district court
erred when it applied a four-level enhancement under U.S.S.G. § 2G2.1(b)(4) for
H.W.
While we note that “even images of children acting innocently can be
considered lascivious if they are intended to be sexual,” United States v. Johnson, 639
F.3d 433, 440 (8th Cir. 2011), we need not determine whether the nude photographs
Jauron requested and received from S.W. and L.M. are lascivious because any error
in the court’s inclusion of S.W. and L.M. as victims was harmless. Likewise, the
district court’s application of the U.S.S.G. § 2G2.1(b)(4) four-level enhancement for
H.W. would constitute harmless error, if it was error at all. “Where, as here, an error
in applying sentencing enhancements does not alter the defendant’s total offense
level, such an error is harmless.” United States v. Stong, 773 F.3d 920, 926 (8th Cir.
2014) (citing United States v. Bastian, 603 F.3d 460, 466 (8th Cir. 2010)). With the
enhancements now challenged by Jauron, the court calculated an offense level of 48;
Jauron argues for a calculation of 44 without the enhancements. Under the
Guidelines calculations performed by the court, the probation office, the government,
and the defendant, Jauron’s total offense level would exceed 43, and therefore must
be treated as 43, the ceiling of offense level calculations. See U.S.S.G. Ch. 5, Pt. A,
cmt. n.2. Thus, even if no sexually explicit conduct occurred with regard to S.W. and
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L.M. and even if the videos of H.W. did not constitute sadistic or masochistic
behavior, Jauron’s total offense level would be a 43. Accordingly, any error in
including S.W. and L.M. as victims for purposes of guidelines calculation or applying
a four-level enhancement for sadistic or masochistic behavior with regards to H.W.
was harmless.
Furthermore, the district court stated that the “sentence would remain 40 years
regardless of how the advisory guidelines were computed. This is a most aggravated
criminal case.” When the district court would have imposed the same sentence absent
an error, such error is harmless. United States v. Pappas, 715 F.3d 225, 230 (8th Cir.
2013); United States v. Idriss, 436 F.3d 946, 951 (8th Cir. 2006). Given the district
court’s explicit statement that it would have sentenced Jauron to 480 months’
imprisonment even if an error in the Guidelines calculation were found, we conclude
on this alternative ground that any error in the district court’s application of the
Guidelines would be harmless.
III.
Jauron further claims that his within-guidelines sentence was substantively
unreasonable on the basis that the district court failed to properly consider the 18
U.S.C. § 3553(a) factors. We apply the deferential abuse-of-discretion standard when
reviewing the substantive reasonableness of a defendant’s sentence. United States
v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (citing Gall v. United States, 552 U.S.
38, 51 (2007)). “A district court abuses its discretion ‘when it fails to consider a
relevant and significant factor, gives significant weight to an irrelevant or improper
factor, or considers the appropriate factors but commits a clear error of judgment in
weighing those factors.” Stong, 773 F.3d at 926 (quoting United States v. Robison,
759 F.3d 947, 950-51 (8th Cir. 2014)). We typically accord a presumption of
reasonableness to a sentence imposed by the district court that falls within the
advisory Guidelines range. United States v. Kobriger, No. 15-2641, 2016 WL
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3212498, at *1 (8th Cir. June 10, 2016) (citing United States v. Scales, 735 F.3d
1048, 1052 (8th Cir. 2013)).
The district court sentenced Jauron to 480 months’ imprisonment. The
advisory guidelines range for a total offense level of 43 is life imprisonment. At the
sentencing hearing, the district court explained that it “looks very carefully at the
3553(a) factors of Title 18,” noted Jauron’s history of stable employment and lack of
alcohol or substance abuse, and found that the arguments for a downward variance
were “wholehearted and supported by the record, but just simply pale in comparison
to the aggravating factors in this case.” The district court went on to discuss some of
the aggravating factors, including the presence of minor victims, the use of fake
identities to trick the minors, and Jauron’s history as a sex offender preying on female
children. We are satisfied that the district court considered all of the relevant and
significant factors and afforded each factor appropriate weight. Jauron’s assertion
that his stable employment and other positive attributes should have been afforded
greater weight is insufficient to demonstrate that the district court abused its
discretion in sentencing him within the advisory Guidelines range. See United States
v. Gasaway, 684 F.3d 804, 808 (8th Cir. 2012) (holding that, despite defendant’s
argument that the district court afforded too much weight to some § 3553(a) factors
and too little weight to others, it is within the district court’s discretion to determine
the weight given to each factor); United States v. Townsend, 617 F.3d 991, 994 (8th
Cir. 2010) (per curiam) (“The district court may give some factors less weight than
a defendant prefers or more to other factors, but that alone does not justify reversal.”)
(citation omitted). We conclude that the repugnant aggravating factors of this case
were properly considered, reversal is not justified in light of the district court’s
careful consideration of such factors, and the district court did not abuse its discretion
when it sentenced Jauron to 480 months or life imprisonment.
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IV.
For the foregoing reasons, Jauron’s sentence is affirmed.
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