United States Court of Appeals
For the Eighth Circuit
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No. 12-3351
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Kenneth Pappas
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 9, 2013
Filed: May 6, 2013
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Before WOLLMAN, BEAM, and MURPHY, Circuit Judges.
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MURPHY, Circuit Judge.
Kenneth Pappas sexually abused his stepdaughter K.D. for five years starting
at age nine, forcing her to perform sexual acts, wear specific clothing, and watch
videos he recorded of the abuse. He pled guilty to one count of sexual exploitation
of a child in violation of 18 U.S.C. § 2251(a) and 2251(e) and one count of
possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and
2252A(b)(2). The district court1 sentenced Pappas to the statutory maximum of 480
months after applying several sentencing enhancements. Pappas appeals, challenging
two of the enhancements and the validity of the sentencing guidelines relating to
sexual exploitation of a child. We affirm.
Pappas met K.D. when she was approximately two years old after he began
dating her mother. Pappas and K.D.'s mother married approximately two years later,
and Pappas began sexually abusing K.D. in approximately 2006 when she was nine.
Over a period of approximately five years Pappas repeatedly forced K.D. to engage
in sexual activity with him while her mother was at work. Pappas made K.D. view
adult pornographic videos with him, and several times he forced her to wear clothing
similar to that worn by the women in the videos. Pappas also recorded two videos of
himself sexually abusing K.D. which show K.D. crying out in pain and asking Pappas
to stop. Pappas also occassionally made K.D. watch these videos while he abused
her. K.D. reported the abuse after Pappas and K.D.'s mother separated in 2011.
Pappas was indicted on three counts. The first and second counts alleged that
between 2008 and 2011 Pappas had enticed K.D. to engage in sexually explicit
conduct for the purpose of producing two separate videos, in violation of 18 U.S.C.
§ 2251(a) and 2251(e). The third count alleged that Pappas had "knowingly
possessed and attempted to possess visual depictions of a minor engaged in sexually
explicit conduct," in violation of 18 U.S.C. § 2252A(a)(5)(B) and 2252A(b)(2).
Pappas pled guilty to counts one and three, and count two was dismissed.
A presentence investigation report (PSR) was drafted for Pappas's sentencing.
It grouped counts 1 and 3, U.S.S.G. § 3D1.2(b), and determined Pappas's base offense
level to be 32, id. § 2G2.1, see id. § 3D1.3(a). It recommended adding two levels
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
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because the offense involved a minor who was over twelve but under sixteen, id.
§ 2G2.1(b)(1)(B), two levels because the offense involved the commission of a sexual
act or sexual contact, id. § 2G2.1(b)(2)(A), four levels because the offense involved
material portraying sadistic or masochistic conduct or other depictions of violence,
id. § 2G2.1(b)(4), and two levels because K.D. had been in Pappas's custody, care, or
supervisory control, id. § 2G2.1(b)(5). In addition the PSR recommended a five level
enhancement because Pappas had engaged in a pattern of activity involving
prohibited sexual conduct. Id. § 4B1.5(b)(1). After three levels were subtracted for
acceptance of responsibility, id. § 3E1.1, Pappas's total offense level was 44. The
total offense level was treated as 43, however, because that is the highest offense
level on the sentencing table. Id. ch. 5, pt. A, cmt. n.2.
Pappas objected to the PSR, requesting that the court "categorically reject" the
use of the sentencing guidelines in his case. Pappas specifically objected to the four
level enhancement under § 2G2.1(b)(4) for depiction of "sadistic or masochistic
conduct or other depictions of violence" and the five level enhancement under
§ 4B1.5(b)(1) for "a pattern of activity involving prohibited sexual conduct." He also
sought a downward variance, arguing that § 2G2.1 is not based on empirical analysis
since it originated in Congress. At the sentencing hearing the defense elicited
testimony from clinical psychologist Frank Sutton Gersh who had spoken with
Pappas. Based on their interactions, Gersh concluded that Pappas is an "incest
offender[]" and thus has "the lowest probability" of reoffending.
The district court overruled Pappas's objections. It noted that the guidelines
recommended life imprisonment, but that the statutory maximum on counts 1 and 3
limited Pappas's sentence to 40 years in prison. After "consider[ing] each and every
one" of the sentencing factors in § 3553(a), the court sentenced Pappas to 480
months, consisting of consecutive sentences of 360 months on count 1 and 120
months on count 3. The district court concluded that Gersh's testimony was
unconvincing, that Pappas's sexual abuse of K.D. was frequent, and that Pappas "is
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a danger to society." It stated that "480 months is the sentence that is sufficient but
not greater than necessary to achieve the goals of sentencing whether or not that's the
sentence that the guidelines would call for. In the event that the guidelines would fall
below 480 months, the Court would depart upward or vary upward to 480 months."
Pappas appeals, challenging the application of the four level enhancement
under § 2G2.1(b)(4) and the five level enhancement under § 4B1.5(b)(1). He also
contends that § 2G2.1 should be categorically rejected because it is not based on
empirical analysis. When reviewing the district court's calculation of the sentencing
guidelines advisory sentencing range, "[w]e review the district court's factual findings
for clear error and its construction and application of the Guidelines de novo."
United States v. Raplinger, 555 F.3d 687, 693 (8th Cir. 2009).
Pappas first challenges the district court's application of the four level
enhancement under § 2G2.1(b)(4) for offenses involving "material that portrays
sadistic or masochistic conduct or other depictions of violence." The guidelines do
not define the terms "sadistic," "masochistic," or "depictions of violence," but we
have concluded that the ordinary meaning of those terms mean that "images involving
. . . an adult male performing anal sex on a minor girl . . . are per se sadistic or
violent." United States v. Street, 531 F.3d 703, 711 (8th Cir. 2008) (citing United
States v. Diaz, 368 F.3d 991, 992 (8th Cir. 2004)). The district court applied the four
level enhancement after viewing a video which showed Pappas sexually abusing K.D.
The district court stated that the video showed the child being "penetrated vaginally,
anally, with a finger, with a dildo, and with a penis." The court found it "particularly
distressing to hear the child ask the defendant to stop, that she is being hurt, and to
hear the victim refer to the defendant as 'Daddy.'"
Pappas argues that the application of a four level enhancement for sadistic or
masochistic conduct resulted in impermissible double counting because he had
already received a two level enhancement under § 2G2.1(b)(2)(A) for offenses
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involving the commission of a sexual act or sexual conduct. We disagree that it is
impermissible double counting to apply enhancements under both § 2G2.1(b)(2)(A)
and § 2G2.1(b)(4) based on the same act. Unlike the definitions of "sadistic,"
"masochistic," or "depictions of violence" under § 2G2.1(b)(4), the terms "sexual act"
and "sexual contact" under § 2G2.1(b)(2)(A) need not involve penetration, 18 U.S.C.
§ 2246(2)–(3); see United States v. Yarrington, 634 F.3d 440, 452 (8th Cir. 2011).
Double counting is prohibited only if the guidelines at issue specifically forbid
it. See United States v. Myers, 598 F.3d 474, 477 (8th Cir. 2010) (citation omitted);
U.S.S.G. § 1B1.1 cmt n.4(A). Pappas has not pointed to any guideline provision
forbidding the application of enhancements under both § 2G2.1(b)(2)(A) and
§ 2G2.1(b)(4). Several courts have concluded that it is not impermissible double
counting to apply both these enhancements based on the same conduct. United States
v. Mouton, 481 F. A'ppx 96, 97 (5th Cir. 2011) (unpublished); see United States v.
McDade, 399 F. App'x 520, 523 (11th Cir. 2010) (unpublished). We conclude that
the district court did not err in applying the four level enhancement under
§ 2G2.1(b)(4).
Pappas next argues that the district court erred in applying a five level
enhancement under § 4B1.5(b)(1) for "engag[ing] in a pattern of activity involving
prohibited sexual conduct." A "pattern of activity" under § 4B1.5(b)(1) must include
at least two separate occasions of prohibited sexual contact with a minor. § 4B1.5,
cmt. n.4(B)(i). Pappas argues that § 4B1.5(b)(1) should be categorically rejected and
that it is only applicable where there is evidence that a defendant engaged in
prohibited sexual activity with more than one minor.
In United States v. Fleetwood, 457 F. App'x 591, 592 (8th Cir. 2012)
(unpublished), we applied § 4B1.5(b)(1) to a defendant who had abused a minor on
multiple occasions. There, we stated that the "plain language" of the application note
in § 4B1.5(b)(1) shows that it applies where a defendant engaged in prohibited sexual
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activity "on at least two separate occasions . . . with a minor." Id. We also explained
that the application notes to § 4B1.5(b)(1) had been amended in 2003 to read "a
minor" instead of "two minor victims." Id. (citing app. C (vol. II) amend. 649
(2003)). The evidence in this case shows that Pappas abused K.D. for approximately
five years and made two separate videos of the sexual abuse. His conduct shows a
"pattern of activity involving prohibited sexual conduct" and the district court did not
err in applying the five level enhancement under § 4B1.5(b)(1).
Pappas finally argues that § 2G2.1 should be categorically rejected as a product
of congressional mandates rather than the expertise of the sentencing commission.
See Troy Stabenow, Deconstructing the Myth of Careful Study: A Primer on the
Flawed Progression of the Child Pornography Guidelines, 24 Fed. Sent'g Rep. 102
(2011). Even assuming the district court "may disregard the child pornography
sentencing guideline on policy grounds," it is "not required to do so." United States
v. Black, 670 F.3d 877, 882 (8th Cir. 2012). Pappas's challenge to § 2G2.1 is also
"not properly made to this court" because on appeal we are "limited to determining
the substantive reasonableness of a specific sentence where the advisory guidelines
range was determined" in accordance with the guidelines. United States v. Shuler,
598 F.3d 444, 448 (8th Cir. 2010).
We review the substantive reasonableness of Pappas's sentence for abuse of
discretion. United States v. Toothman, 543 F.3d 967, 970 (8th Cir.2008). We must
first ensure that the district court committed no significant procedural error. Gall v.
United States, 552 U.S. 38, 51 (2007). If no significant procedural error is found, we
then consider "the totality of the circumstances" in determining if an abuse of
discretion occurred. Id. A sentence within the advisory guidelines range is
presumptively reasonable on appeal. United States v. Spotted Elk, 548 F.3d 641,
679–80 (8th Cir. 2008). Pappas argues that his sentence is substantively
unreasonable because the district court stated at his sentencing hearing that it was
"questionable" whether Pappas had ever "offended against children before." Pappas's
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total offense level was 44, but the district court properly noted that the guidelines
limited his total offense level to 43. U.S.S.G. ch. 5, pt. A, cmt. n.2. The district court
then carefully considered the arguments made by Pappas at sentencing and the
§ 3553(a) factors and concluded that Pappas "is a danger to society" and that his
sexual abuse of K.D. had been frequent. The record indicates that the district court
considered all the relevant factors and it did not abuse its wide discretion in
sentencing Pappas.
Furthermore, even if Pappas were successful on any issues he raises on appeal,
the district court made sufficient findings that his final sentence would be unchanged
regardless of his guideline calculations. The district court stated that "[i]n the event
that the guidelines would fall below 480 months, the Court would depart upward or
vary upward to 480 months." Since the district court explicitly stated that it would
have imposed a 480 month sentence regardless of the guidelines, any error in
applying the guidelines would be harmless. See United States v. Davis, 583 F.3d
1081, 1094 (8th Cir. 2009).
Accordingly, we affirm the judgment of the district court.
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