United States Court of Appeals
For the Eighth Circuit
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No. 21-2718
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United States of America
Plaintiff - Appellee
v.
Paul Joseph Winnick
Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota
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Submitted: April 15, 2022
Filed: August 22, 2022
[Unpublished]
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Before SMITH, Chief Judge, WOLLMAN and GRASZ, Circuit Judges.
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PER CURIAM.
Paul Winnick pled guilty to three counts of production and attempted
production of child pornography. See 18 U.S.C. § 2251(a) and (e). The district court
determined the United States Sentencing Guidelines Manual (“Guidelines”)
recommended a sentence of 1,080 months (90 years) of imprisonment. The district
court then sentenced Winnick to 336 months of imprisonment. Winnick appealed
his sentence, and we remanded for the district court to clarify its decision to only
partially grant Winnick time served for related state charges. See United States v.
Winnick, 954 F.3d 1103, 1104, 1106 (8th Cir. 2020). On remand, the district court 1
imposed the same 336-month sentence. Winnick again appeals, this time arguing
the district court erred procedurally and substantively. We affirm.
Winnick first argues the district court procedurally erred by not meaningfully
considering some of his mitigation arguments. Because Winnick did not object on
this basis at the sentencing hearing, we review for plain error. See United States v.
Fry, 792 F.3d 884, 891 (8th Cir. 2015). Here, we find no plain error. The district
court did not need to “respond to every argument made by” Winnick. United States
v. Keatings, 787 F.3d 1197, 1202 (8th Cir. 2015). And we presume the district court
considered Winnick’s mitigation arguments because he presented them at the
sentencing hearing. See United States v. Ali, 799 F.3d 1008, 1034 (8th Cir. 2015).
The district court then explicitly stated it considered “all of the Section 3553(a)
factors” in imposing the sentence—a statement “[w]e have no reason to question,”
United States v. Woods, 603 F.3d 1037, 1040 (8th Cir. 2010). The district court
proceeded to address the relevant § 3553(a) factors. See Keatings, 787 F.3d at 1202
(“[T]he court need not . . . recite each section 3553 factor.”). On this record, we are
convinced the sentencing court “considered the parties’ arguments and ha[d] a
reasoned basis for exercising [its] own legal decision making authority.” Id. at 1203
(quoting United States v. Robinson, 516 F.3d 716, 718 (8th Cir. 2008)). The district
court did not plainly err.
In his brief, Winnick also argues the district court erred by applying the
U.S.S.G. § 4B1.5(b)(1) “pattern” enhancement. But he conceded at sentencing that
his argument was foreclosed by our precedent and we rejected this same argument
in his prior sentencing appeal. See Winnick, 954 F.3d at 1106. And we are bound
1
The Honorable Wilhelmina M. Wright, United States District Judge for the
District of Minnesota.
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by the prior panel’s decision. See United States v. Anderson, 771 F.3d 1064, 1066
(8th Cir. 2014).
Winnick next argues the district court imposed a substantively unreasonable
sentence. We review the substantive reasonableness of a sentence “under a
deferential abuse-of-discretion standard.” United States v. Kobriger, 825 F.3d 495,
497 (8th Cir. 2016). When a district court grants a downward variance, as here, “it
is nearly inconceivable that the court abused its discretion in not varying downward
still further.” United States v. Jackson, 909 F.3d 922, 925 (8th Cir. 2018) (quoting
United States v. Lundstrom, 880 F.3d 423, 446 (8th Cir. 2018)). This is not one of
those nearly inconceivable cases.
As the district court noted, Winnick sexually exploited and abused young
children by inducing and coercing them to perform sexual acts with him and
recording them. See 18 U.S.C. § 3553(a)(1). These young victims will have to live
with the memories of these heinous crimes. As the district court found, Winnick’s
crime likely inflicted “severe,” “personal,” and “long-lasting harm on the children.”
Winnick also tried to destroy evidence of his crimes. The district court determined
a meaningful term of imprisonment was necessary to punish Winnick and reflect the
seriousness of Winnick’s offenses, promote respect for the law, deter others from
similar crimes, and protect the public from Winnick. See 18 U.S.C.
§ 3553(a)(2)(A)–(C). That said, the district court also found both Winnick’s post-
conviction rehabilitative efforts and the “personal difficulties” he had experienced
to be mitigating factors. Considering the district court’s careful analysis of both
aggravating and mitigating factors, we conclude Winnick’s 336-month term of
imprisonment is substantively reasonable.
Winnick last argues the district court should have disregarded the U.S.S.G.
§ 4B1.5(b)(1) “pattern” enhancement because the enhancement was allegedly not
based on empirical study. This argument is a nonstarter. While district courts may
“vary from the Guidelines based on” a policy disagreement, they do not abuse their
discretion in declining to do so. United States v. Carter, 960 F.3d 1007, 1012 (8th
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Cir. 2020), cert. denied, 141 S. Ct. 577 (2020) and 141 S. Ct. 835 (2020). And “[w]e
do not consider policy arguments about the Guidelines on appeal.” Id.
We affirm the judgment of the district court.
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