United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-2602
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United States of America, *
*
Appellee, *
* Appeal from the United
v. * States District Court for the
* District of Minnesota.
Barry Vincent Ardolf, *
*
Appellant. *
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Submitted: February 15, 2012
Filed: July 5, 2012
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Before RILEY, Chief Judge, WOLLMAN and SMITH, Circuit Judges.
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RILEY, Chief Judge.
Barry Vincent Ardolf pled guilty to (1) unauthorized access to a protected
computer, in violation of 18 U.S.C. § 1030(a)(2), (c)(2)(B)(ii); (2) aggravated identity
theft, in violation of 18 U.S.C. § 1028A; (3) threats to the Vice President of the United
States, in violation of 18 U.S.C. § 871(a); (4) possession of child pornography, in
violation of 18 U.S.C. § 2252(a)(4)(B), (b)(2); and (5) distribution of child
pornography, in violation of 18 U.S.C. § 2252(a)(1), (b)(1). The district court1
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The Honorable Donovan W. Frank, United States District Judge for the District
of Minnesota.
sentenced Ardolf to 216 months imprisonment. Ardolf appeals the district court’s
application of separate two-level enhancements under (1) United States Sentencing
Guidelines (U.S.S.G. or Guidelines) § 3C1.1 for obstruction of justice, and (2)
U.S.S.G. § 2G2.2(b)(7)(A) because Ardolf’s offenses involved at least ten images of
child pornography. Ardolf also challenges the substantive reasonableness of his
sentence. We affirm.
I. BACKGROUND
A. Factual Background
In August 2008, Ardolf began to play chase with his new neighbors’ four-year-
old son, W.K., after the boy wandered into Ardolf’s yard. W.K.’s mother heard
Ardolf say, “Bet you can’t touch me,” and she then called W.K. back. Ardolf carried
W.K. back home. While her back was turned, W.K.’s mother heard Ardolf kiss W.K.
Later, W.K. told his mother Ardolf had kissed him on the mouth. W.K.’s father
confronted Ardolf, who admitted kissing W.K. Thereafter, W.K.’s father reported this
incident to law enforcement.
Following these events, Ardolf began a campaign to terrorize W.K.’s parents.
W.K.’s father is a lawyer and was employed at a law firm. In February 2009, Ardolf
illegally gained access to W.K.’s parents’ wireless internet router and used the access
to send three separate emails to the father’s coworkers using an email account Ardolf
created in the father’s name without the father’s knowledge. One email contained an
image of child pornography (original image) and suggested the coworker “could
appreciate” the child pornography. The other two emails indicated romantic or sexual
interest by W.K.’s father in the father’s work assistant. When the management of the
father’s law firm confronted him about the emails, W.K.’s father denied sending the
emails or using the account from which they were sent.
In March 2009, Ardolf emailed two of the father’s coworkers from a different
account, posing as a woman and claiming W.K.’s father sexually assaulted her. In
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response to this email, the law firm hired an outside law firm and a computer forensic
expert to investigate. The investigation showed the emails had been sent using W.K.’s
parents’ router. The father denied responsibility and stated he suspected Ardolf of
sending the emails because Ardolf might be angry about the father reporting Ardolf
to the police. After the investigation revealed a device was connected to the parents’
router without their knowledge, W.K.’s father allowed the investigator to connect a
packet-capturing device to their router in order to discover who was using the router
to send the emails.
In July 2009, Ardolf sent the parents harassing emails. He sent the mother an
email purporting to be from a woman having an affair with her husband. Ardolf sent
the father an anonymous email threatening, “I know where you and your family live[,]
and I’m going to get you back for sueing [sic] us.”
The investigation also uncovered a MySpace page Ardolf created in the father’s
name, again without his knowledge or permission. Ardolf posted on that MySpace
page the same child pornography image he sent to the father’s coworker, except with
the children’s faces obscured (altered image).
In April and May 2009, several death threats were sent to the Vice President
and other public officials from an email address purporting to belong to W.K.’s
parents. The federal government became involved in the investigation, and United
States Secret Service agents visited the father at his work. Investigators examined the
packet-capture data, which revealed Ardolf used the parents’ router to send the
threatening emails.
On July 21, 2009, federal agents searched Ardolf’s home, pursuant to a warrant,
and found numerous computers, external data storage devices, manuals about hacking,
hacking software, text of the emails sent to the father’s coworkers, and notes on the
user names and passwords for the accounts created in the parents’ names. Analysis
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of the computers revealed notes on plans for future harassment of W.K.’s parents and
others, screen shots of the hacking software accessing W.K.’s parents’ router, and
images of child pornography.
B. Procedural History
1. Guilty Plea and Attempted Withdrawal
On June 23, 2010, a grand jury charged Ardolf with (1) one count of
unauthorized access to a protected computer, (2) two counts of aggravated identity
theft, (3) one count of possession of child pornography, (4) one count of transmission
of child pornography, and (5) one count of threats to the President and successors to
the Presidency.
Ardolf pled guilty to all counts on December 17, 2010, three days into trial.
The district court engaged in a lengthy plea colloquy to ensure Ardolf’s plea was
knowing, voluntary, and intelligent. Ardolf repeatedly admitted under oath he was
guilty of all six counts and his plea was voluntary. Ardolf also admitted, in detail, the
facts underlying each offense.
On March 18, 2011, Ardolf moved to withdraw his guilty plea, claiming he had
been coerced by his attorney into entering the plea. Ardolf said he lied at the change
of plea hearing and did not commit the acts to which he pled guilty. He also asserted
that, if given a new trial, he would suggest W.K.’s parents “framed” him. The district
court denied Ardolf’s motion to withdraw his plea.
2. Sentencing
The presentence investigation report (PSR) calculated a total offense level of
38 and a criminal history category of I, with a resulting advisory Guidelines range of
235 to 293 months imprisonment. The PSR also noted Ardolf was subject to a
minimum two-year consecutive sentence for the aggravated identity theft counts.
Ardolf challenged the applicability of several enhancements recommended by the
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PSR, including a two-level enhancement for obstruction of justice, pursuant to
U.S.S.G. § 3C1.1; a two-level enhancement for an offense involving ten or more
images of child pornography, pursuant to U.S.S.G. § 2G2.2(b)(7); and a four-level
enhancement for offenses involving material portraying sadistic or masochistic
conduct, pursuant to U.S.S.G. § 2G2.2(b)(4). Ardolf also argued the mandatory
minimum sentence for aggravated identity theft should not apply.
a. Obstruction of Justice Enhancement
To support the enhancement for obstructing justice, the government introduced
four letters. In one, Ardolf instructed his son, T.A., on the answers Ardolf expected
T.A. to give to various questions at trial. Ardolf told T.A. “to confirm that you
watched [W.K.] and your father, and that no kiss occurred. If you don’t, I will likely
go to prison.” Ardolf also instructed T.A. to “[t]ell the court you saw the whole thing
and nothing inappropriet [sic] occurred. I don’t know if you watched [W.K.’s father]
come over the next day but if you did keep to my story.”
After Ardolf pled guilty, he sent letters to his sister and children about how to
write letters to the district court for the sentencing hearing. Ardolf told his daughter
to say
how you will figuratively be an orphan and . . . you are crying about not
having me there for you. . . . I figure you can write it, mail it to me so I
can add suggestions and we can mail it back and forth a few time[s] to
make it as good as it can be. This is for you and [T.A.] to do so I get a
letter from each of you. You can cry about how you lost mom, now you
are loosing [sic] Dad. The better the letter, the smaller jail time the judge
gives me.
In another letter, Ardolf told T.A. to contact Ardolf’s sister and instruct her not “to say
anything bad about my life.” Finally, Ardolf asked his sister to allow him to edit her
letter “to hopefully get me less years in prison.” He drafted her letter “to get [her] on
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track” and suggested she say, “That new neighbor made false acusations [sic] against
[Ardolf].”
The district court applied the enhancement for obstruction of justice based on
“the tone and the nature of the letters to [Ardolf’s] son, to [his] sister, insistence that
I am going to proofread anything you send in, so send it to me first. And one phrase,
keep to my story.” The district court stated the enhancement also was proper because
Ardolf tried to withdraw his guilty plea, and the district court found Ardolf’s
“targeting [of] the victims saying, not only am I innocent, but they did it” was not
credible.
b. Child Pornography Enhancement
FBI Special Agent Robert Cameron testified he found eight images of child
pornography on Ardolf’s computers and data storage devices, plus the image emailed
to the father’s coworker and “the image posted on MySpace.” Investigators found the
original image on five devices and the altered image on three devices. One copy of
the original image was in drive free space, meaning “[t]he image was on the
computer, . . . then it was deleted. But the image still exists on the computer.”
Although images in drive free space can only be accessed using specialized tools
(some are free and publicly available), “at one point in time, [Ardolf] had it on the
computer in a version that he could see.” The district court found Ardolf’s offenses
involved ten images.
c. Sentencing Pronouncement
The district court adopted the PSR and applied the mandatory minimum two-
year consecutive sentence for aggravated identity theft. The district court granted
Ardolf’s objection to the enhancements for portrayal of sadistic or masochistic
conduct, but overruled Ardolf’s other objections. The district court assigned Ardolf
a total offense level of 34 and criminal history category of I, resulting in an advisory
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Guidelines range of 151 to 188 months imprisonment, then adding a two-year
mandatory minimum consecutive sentence for aggravated identity theft.
At sentencing, W.K.’s parents testified about the effect of Ardolf’s crimes on
them. Both reported they “no longer felt safe in [their] own home” and daily feared
another attack. The mother reported having “horrible nightmares” about Ardolf.
The district court noted Ardolf’s three children would be affected negatively by
Ardolf’s imprisonment, especially because their mother is deceased, but the court’s
sentence would not “restore [W.K.’s parents’] peace of mind, . . . security, [and]
serenity.” The district court decided Ardolf’s offenses were “worse than a [typical]
child pornography case” because of the way Ardolf used the images, the threats to the
Vice President, the email to the father’s assistant, and the allegations the father
committed sexual assault to try to destroy W.K.’s parents. The district court stated
“people can do more damage with computer hacking, especially when they use a
picture like that, than they can with a gun or they can with drugs.”
The district court considered the 18 U.S.C. § 3553(a) factors, expressing
particular concern with deterring Ardolf from engaging in similar behavior in the
future. The district court found Ardolf “at high risk” of repeating such behavior
because he had poor self control, as shown by the fact “that incident [involving
kissing W.K.] would not drive a normal person to do . . . most of what happened here
with” W.K.’s parents.
The district court sentenced Ardolf to 216 months imprisonment because
“anything less . . . would not promote respect for the law and provide the proper
deterrence.” The sentence included a mandatory minimum two-year consecutive
sentence for the aggravated identity theft counts. The remaining 192 months Ardolf
received for the other counts exceeded the advisory Guidelines range by four months
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because “the Guidelines didn’t contemplate” the way Ardolf used the child
pornography.
II. DISCUSSION
We review the district court’s imposition of Ardolf’s sentence for abuse of
discretion, “first ensur[ing] that the district court committed no significant procedural
error, such as failing to calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing to adequately explain
the chosen sentence.” Gall v. United States, 552 U.S. 38, 51 (2007). In doing so, we
review the district court’s findings of fact for clear error and its application of the
Guidelines de novo. See United States v. Flying By, 511 F.3d 773, 778 (8th Cir.
2007). If the district court committed no procedural error, we “then consider the
substantive reasonableness of the sentence under an abuse-of-discretion standard.”
Gall, 552 U.S. at 51.
Ardolf contends (1) the district court incorrectly calculated his sentence under
the Guidelines by applying enhancements for obstruction of justice and the number
of images; and (2) his sentence is substantively unreasonable.
A. Procedural Challenges
1. Obstruction of Justice
A defendant’s offense level is increased by two levels if
(1) the defendant wilfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice with respect to the
investigation, prosecution, or sentencing of the instant offense of
conviction, and (2) the obstructive conduct related to (A) the defendant’s
offense of conviction and any relevant conduct; or (B) a closely related
offense.
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U.S.S.G. § 3C1.1. The district court found two separate bases for the obstruction of
justice enhancement: (1) Ardolf’s letters to his children and sister, and (2) Ardolf’s
perjury in attempting to withdraw his guilty plea.
A defendant’s solicitation of false testimony may merit an enhancement for
obstruction of justice. See United States v. Noland, 960 F.2d 1384, 1391 (8th Cir.
1992). We concluded in United States v. Mugan, 441 F.3d 622, 631-32 (8th Cir.
2006), that the sentencing court did not clearly err in finding the defendant “attempted
to obstruct justice by . . . solicit[ing] false and exculpatory testimony” in letters to his
relatives. Id. at 631. We deferred to the sentencing court’s disbelief of the
defendant’s contention “he was only seeking truthful testimony” because the
sentencing court’s “credibility determination is entitled to deference.” Id. at 632.
Similarly, the district court found Ardolf attempted to obstruct justice by
instructing T.A. to “keep to [Ardolf’s] story” about the alleged kiss of W.K. and the
father’s ensuing confrontation with Ardolf, telling his children and sister to write only
positive things about him, and insisting he edit their letters. Ardolf contends asking
T.A. to “keep to [Ardolf’s] story” did not relate to his offenses of conviction because
kissing W.K. is not an element of any of those offenses. The evidence Ardolf kissed
W.K. demonstrates Ardolf’s motivation to commit the offenses of which he was
convicted. We also must reject Ardolf’s claims he was “not instructing his son to lie.”
The district court’s disbelief of this testimony is a credibility determination entitled
to our deference. See id. The district court did not clearly err in finding Ardolf’s
letters solicited “false and exculpatory testimony” relating to Ardolf’s offenses of
conviction. See id. at 631.
The district court was independently justified in applying the obstruction of
justice enhancement based on its finding Ardolf perjured himself when attempting to
withdraw his guilty plea. An obstruction of justice enhancement is appropriate where
the defendant willfully “testifies falsely under oath in regard to a material matter.”
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United States v. Alvarado, 615 F.3d 916, 923 (8th Cir. 2010) (quoting United States
v. Mendoza-Gonzalez, 363 F.3d 788, 796 (8th Cir. 2004) (internal quotation marks
omitted)). Ardolf admitted under oath (1) his guilt, (2) the voluntariness of his plea,
and (3) a “series of facts [which] supported his guilt.” Alvarado, 615 F.3d at 923.
Ardolf’s later attempt to withdraw his guilty plea, claiming he did not commit the
crimes with which he was charged, “directly contradicted the sworn statements
[Ardolf] made during his change of plea hearing.” Id. The district court did not
clearly err in believing Ardolf’s plea testimony and not believing his plea withdrawal
testimony and in applying the enhancement for obstruction of justice. See id. (finding
an enhancement under U.S.S.G. § 3C1.1 appropriate under similar circumstances).
2. Number of Images
U.S.S.G. § 2G2.2(b)(7)(A) calls for a two-level enhancement if the offense
involved at least ten, but fewer than 150, images of child pornography. An image is
“any visual depiction” of child pornography including electronically-stored data that
“is capable of conversion into a visual image.” 18 U.S.C. § 2256(5); U.S.S.G.
§ 2G2.2, cmt. 4(A). “Each photograph, picture, or computer-generated image, or any
similar visual depiction shall be considered to be one image.” See U.S.S.G. § 2G2.2,
cmt. n.4(B)(i).
Ardolf claims he possessed only two images of child pornography. He argues
the duplicates of those images do not count as separate images for the purposes of
U.S.S.G. § 2G2.2.2 Ardolf is mistaken. Each duplicate image distributed by a
defendant is a separate image based upon the “plain reading of [U.S.S.G. § 2G2.2 cmt.
n4(B)].” United States v. Sampson, 606 F.3d 505, 510 (8th Cir. 2010). Ardolf claims
Sampson’s holding is limited to distribution of duplicate images of child pornography
and does not apply to his possession of duplicate images. U.S.S.G. § 2G2.2 “applies
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Ardolf concedes both the original and altered images constituted child
pornography.
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equally to distribution and possession of child pornography.” United States v.
McNerney, 636 F.3d 772, 780 (6th Cir. 2011); see U.S.S.G. § 2G2.2. The “plain
reading” of U.S.S.G. § 2G2.2, cmt. n.4(B) requires counting duplicates as separate
images for purposes of possession. See McNerney, 636 F.3d at 780 (concluding
“duplicate digital images” possessed by a defendant are separate images).
Alternatively, Ardolf argues his offenses involved only nine images because the
government did not prove the image in the drive free space was or could be
transmitted. An image counts if Ardolf possessed it at some point. See United States
v. Nissen, 666 F.3d 486, 489, 491 (8th Cir. 2012) (concluding a U.S.S.G.
§ 2G2.2(b)(7) enhancement was proper because “thumbnail images were created when
[since-deleted] videos were edited or played,” which allowed the district court to infer
the defendant “knowingly possessed the videos because he viewed them or edited
them at some point”). Agent Cameron testified the presence of the image in the drive
free space meant that, at one point, Ardolf possessed the image itself. The district
court did not clearly err in finding Ardolf possessed ten images of child pornography
for purposes of the § 2G2.2(b)(7) enhancement. See id.; see also United States v.
Paquin, 339 F. App’x 983, 984-86 (11th Cir. 2009) (unpublished per curiam)
(deciding the district court did not err in enhancing the defendant’s sentence under
U.S.S.G. § 2G2.2(b)(7) for deleted images found in “unallocated file space”).
B. Substantive Reasonableness
Because the “district court’s sentencing decision is procedurally sound,” we
now “consider the substantive reasonableness of the sentence imposed under an abuse-
of-discretion standard.” Gall, 552 U.S. at 51. A district court abuses its discretion
when “it fails to consider a relevant [18 U.S.C. § 3553(a)] 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. Watson, 480 F.3d 1175, 1177 (8th Cir.
2007).
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Ardolf claims his sentence is substantively unreasonable because he (1) “is a
single father of three children,” (2) is a first-time offender, and (3) “clearly was not
motivated by the rationale behind the child pornography guidelines” because he did
not “use[] the child pornography to stimulate his sexual appetite” or “engage[] in child
molestation or pedophilia.”
“We do not require a court ‘to recite the § 3553(a) factors mechanically.’”
United States v. Stroud, 673 F.3d 854, 862 (8th Cir. 2012) (quoting United States v.
Wood, 587 F.3d 882, 884 (8th Cir. 2009)); see also Rita v. United States, 551 U.S.
338, 356-57 (2007). It is clear the district court here sufficiently considered the
§ 3553(a) factors. See id. The district court expressly noted Ardolf is the single father
of three children and is not a typical child pornography offender. The district court
did vary upward by four months because “the Guidelines didn’t contemplate” the way
in which Ardolf used the child pornography and because the district court believed a
shorter sentence “would not promote respect for the law and provide the proper
deterrence.”
Given Ardolf’s serious and repeated invasions of the victims’ privacy and
security, as well as his plans to continue such conduct had law enforcement not
intervened, the district court did not abuse its discretion in sentencing Ardolf to 216
months imprisonment.
III. CONCLUSION
We affirm the sentence imposed by the district court.
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