United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-1835
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Kenneth Leon Wilcox, *
*
Appellant. *
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Submitted: December 12, 2011
Filed: January 27, 2012
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Before LOKEN, MURPHY, and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
Kenneth Leon Wilcox pled guilty to one count of transportation of a minor
with intent to engage in criminal sexual activity, in violation of 18 U.S.C. § 2423(a),
and one count of production of child pornography, in violation of 18 U.S.C. § 2251(a)
and (e). The district court1 sentenced him to 480 months imprisonment. Wilcox
appeals his sentence, arguing that it is substantively unreasonable. We affirm.
1
The Honorable Michael J. Davis, Chief Judge, United States District Court
for the District of Minnesota.
I.
In 2005, Kenneth Wilcox began sexually abusing his 12-year-old daughter on
a weekly basis. The abuse continued for approximately four years. During this time,
Wilcox recorded the sexual abuse in at least five different videotapes, which depicted
the victim using various sex toys on herself, Wilcox receiving oral sex from the
victim, and Wilcox engaging in vaginal sex with the victim. During the execution of
search warrants at Wilcox’s residence and a semi-trailer used by Wilcox for storage,
law enforcement officers also recovered many topless images of the victim, along
with multiple images of child pornography containing identified minor victims.
Wilcox was an over-the-road trucker, and he took advantage of the fact that the victim
was isolated with him on interstate trucking runs; much of the abuse and the
production of the child pornography occurred while Wilcox and the victim were
traveling together. The sexual abuse only came to an end in December of 2009, after
the victim informed a friend’s mother and brought her one of the videos.
In addition to the sexual abuse and the production of the videos, Wilcox had
the victim sign “contracts” detailing the sex acts she would be required to perform in
the future. These contracts instructed the victim to dress in a certain manner, required
the victim to be submissive to Wilcox, and discussed sexual acts the victim would be
forced to perform as punishment for “breach” of any of the contract terms. Several
of the contracts discussed payment for nude pictures of the victim’s friends, the
formation of a “sex house” with the victim, and a promise to allow Wilcox to teach
any potential future daughters of the victim about sex.
On June 15, 2010, a federal grand jury returned a ten-count Indictment
charging Wilcox with five counts of interstate transportation of a minor with intent
to engage in criminal sexual activity and five counts of production of child
pornography. On October 14, 2010, Wilcox pled guilty to one count of interstate
transportation of a minor with intent to engage in criminal sexual activity and one
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count of production of child pornography. In the plea agreement, Wilcox admitted
that he committed the acts charged in the other eight counts of the Indictment and
acknowledged that these acts constituted relevant conduct for the purposes of
calculating his Sentencing Guidelines range. Both parties agreed that Wilcox’s
offense level was 48, which exceeds the highest level of the Guidelines. Wilcox was
therefore treated as though he possessed an offense level of 43, which is the
maximum offense level contained in the Sentencing Table and carries an advisory
sentence of life imprisonment.
Prior to sentencing, Wilcox requested a downward variance to 240 months
imprisonment pursuant to the factors of 18 U.S.C. § 3553(a). In a written sentencing
memorandum, Wilcox argued that the variance was appropriate because he was a
first-time sex offender, had no significant criminal history, and had demonstrated
commitment to rehabilitation by seeking treatment in jail. Wilcox further claimed
that he experienced sexual abuse as a minor, presented a low risk of recidivism, and
felt genuine remorse over his actions. Finally, Wilcox argued that the Sentencing
Guidelines for production of child pornography lacked an empirical basis and did not
effectively reflect the goals of sentencing. In response, the Government argued that
the nature and circumstances of the offense were particularly heinous, that Wilcox’s
remorse and commitment to treatment developed only after his arrest, that the “sex
contracts” expressing Wilcox’s intent to teach the victim’s daughters about sex
demonstrated a desire to reoffend, and that a sentence of life imprisonment would be
consistent with sentences imposed in similar cases.
At the sentencing hearing, Wilcox again argued for a downward variance to 20
years, citing the arguments from his written sentencing memorandum. Wilcox
expressed his desire to apologize to the victim and stated that he was participating in
a self-help program. The Government restated its position that a sentence of life
imprisonment would be sufficient to comply with the purposes of sentencing. After
confirming that the appropriate Guidelines sentence was life imprisonment, the court
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decided to vary downward, but not to the extent requested by Wilcox. Ultimately, the
court sentenced Wilcox to 480 months imprisonment on Count 1 and 360 months
imprisonment on Count 2, to be served concurrently and followed by a lifetime of
supervised release.
II.
On appeal, Wilcox challenges his sentence of 480 months imprisonment as
substantively unreasonable.
“We review the substantive reasonableness of a defendant’s sentence for abuse
of discretion.” United States v. Wisecarver, 644 F.3d 764, 774 (8th Cir.), cert.
denied, 132 S. Ct. 533 (2011). “[A]n abuse of discretion occurs where the sentencing
court fails to consider a relevant factor that should have received significant weight,
gives significant weight to an improper or irrelevant factor, or considers only the
appropriate factors but commits a clear error of judgment in weighing those factors.”
United States v. Bryant, 606 F.3d 912, 921 (8th Cir. 2010) (quotation marks omitted).
Wilcox argues that his sentence is unreasonable because the district court failed
to give proper weight to Wilcox’s lack of meaningful criminal history, his genuine
remorse and efforts at rehabilitation, and his low risk of recidivism. In particular,
Wilcox argues that the court abused its discretion by giving little mitigating weight to
a psychological evaluation of Wilcox predicting a low likelihood of reoffense and a
published study on the reduced risk of recidivism in cases of incest. Wilcox also
contends that the court failed to consider the sexual abuse that he experienced as a
child.
In both his written memorandum and at the sentencing hearing, Wilcox
presented the arguments regarding his remorse, low risk of recidivism, minimal
criminal history, and past childhood abuse. In sentencing Wilcox, the court
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announced that it had reviewed the factors under 18 U.S.C. § 3553(a).2 The district
court also stated that it had considered “everything in [Wilcox’s] file” and had
reviewed the psychological report submitted by Wilcox. “Thus, the district court was
aware of [Wilcox’s] arguments, and we therefore presume that the district court
considered and rejected them.” United States v. Johnson, 619 F.3d 910, 922 (8th Cir.
2010).
Moreover, the sentencing transcript demonstrates that the district court was
skeptical of Wilcox’s claims of remorse and placed a great deal of weight on the
monstrous nature of Wilcox’s offense:
The statement, sir, of you wishing that your daughter was here so you
can apologize . . . rings so hollow that really the Court should not
respond to it. You abused your daughter in the most despicable way
possible for a lengthy period of time, isolated her. She unfortunately is
just destroyed for the rest of her life. And the just punishment in this
matter is for you to spend practically the rest of your life in prison.
In its statement of reasons for imposing Wilcox’s sentence, the court further explained
that it relied upon its viewing of the videotapes confiscated by law enforcement and
the horrifyingly detailed “sex contracts” that Wilcox had the victim sign. Thus, the
record reveals that the district court believed that the nature and circumstances of
Wilcox’s offense deserved greater consideration under section 3553(a) than any of the
mitigating factors presented by Wilcox, which is a determination well within the
discretion of the district court. We have held that “[t]he district court’s choice to
assign relatively greater weight to the nature and circumstances of the offense than to
the mitigating personal characteristics of the defendant is well within the ‘wide
2
These factors include the defendant’s criminal history, the nature of his
offense, and whether the sentence would provide just punishment, deter criminal
conduct, protect the public from further crimes, and provide the defendant with
needed correctional treatment. 18 U.S.C. § 3553(a)(1) and (2).
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latitude [given] to individual district court judges in weighing relevant factors.’”
Wisecarver, 644 F.3d at 774 (quoting United States v. Foy, 617 F.3d 1029, 1037 (8th
Cir. 2010), cert. denied, 131 S. Ct. 1512 (2011)). “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.” United States v. Anderson, 618 F.3d 873, 883 (8th Cir. 2010),
cert. denied, 131 S. Ct. 1550 (2011). After all, “[t]he sentencing judge is in the best
position to find facts and ‘judge their import under § 3553(a) in the individual case.’”
Id. (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). Under these
circumstances, we cannot find that a below-Guidelines sentence of 480 months
imprisonment is substantively unreasonable, and we therefore find no abuse of
discretion.
III.
We affirm the sentence imposed by the district court.
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