United States v. Steven Horton ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 18-3666
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Steven Shane Horton
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Council Bluffs
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Submitted: October 14, 2019
Filed: November 13, 2019
[Unpublished]
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Before SMITH, Chief Judge, GRUENDER and BENTON, Circuit Judges.
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PER CURIAM.
Steven Shane Horton pled guilty to access or attempt to access child
pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). The district court1
sentenced him to 84 months’ imprisonment. He appeals. Having jurisdiction under
28 U.S.C. § 1291, this court affirms.
Horton argues his sentence should be reversed because the government did not
timely submit its objections to the presentence investigation report (“PSR”) or
sentencing exhibits. This court reviews the decision to allow untimely objections and
exhibits for abuse of discretion. See United States v. Sheridan, 859 F.3d 579, 583
(8th Cir. 2017) (noting that “the Rules of Evidence expressly do not apply to
sentencing proceedings” and when “a proper objection is made” this court reviews
for abuse of discretion) (cleaned up); United States v. Jones, 70 F.3d 1009, 1010 (8th
Cir. 1995) (“[T]he district court had the discretion to consider Jones’s untimely
objection if he satisfied Federal Rule of Criminal Procedure 32(b)(6)(D).”).
The deadline to submit objections to the PSR was September 18th. The
government submitted its objections September 25th, over two months before
sentencing. The deadline to submit sentencing memoranda and exhibits was five days
before sentencing. The government filed its memorandum and exhibits two days
before sentencing. The government did not timely submit its objections or exhibits.
However, the district court did not abuse its discretion in overruling the objections
to their timeliness. Horton had sufficient time to review the government’s objections
and exhibits. See Sheridan, 859 F.3d at 583 (holding that a district court may rely on
evidence “without regard to its admissibility under the rules of evidence applicable
at trial, so long as that evidence possesses sufficient indicia of reliability to support
its probable accuracy”) (internal quotation marks omitted); United States v. Leach,
491 F.3d 858, 862 (8th Cir. 2007) (“The reason for the fourteen-day filing
1
The Honorable Stephanie M. Rose, United States District Judge for the
Southern District of Iowa.
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requirement” of Fed. R. Crim. P. 32(f) “is so that the objections can be addressed
and investigated prior to the sentencing hearing.”) (cleaned up).
Horton challenges the five-level sentencing enhancement for accessing more
than 600 images of child pornography. This court “review[s] de novo whether the
district court correctly interpreted and applied the sentencing guidelines” and “the
court’s factual findings are reviewed for clear error.” United States v. Koch, 625 F.3d
470, 480 (8th Cir. 2010). Horton argues the evidence was insufficient to support the
finding that he accessed more than 600 images because clicking a link to child
pornography does not mean he “actually accessed or attempted to access that many
images.” This argument is without merit. There is no requirement that the court find
he “viewed specific images in order to count them.” Id. See United States v. Huyck,
849 F.3d 432, 439 (8th Cir. 2017) (holding that the defendant “did not simply and
accidentally navigate” to child pornography “for a few meaningless minutes” but
rather “accessed [it] after taking a number of intermediate steps that indicated his
knowledge that [the site] trafficked in child pornography”). The evidence that he
clicked on links containing more than 600 images is sufficient to meet the
requirements of the sentencing enhancement. See United States v. Nissen, 666 F.3d
486, 491 (8th Cir. 2012) (“Indeed, a court is permitted to rely on circumstantial
evidence that demonstrates knowing possession of a certain number of images when
deciding whether USSG § 2G2.2(b)(7)(D) applies.”). The district court did not
clearly err in finding Horton accessed more than 600 images.
Horton asserts the district court did not properly weigh the sentencing factors,
specifically his age, “low risk of recidivism,” medical issues, and employment, in
sentencing him. This court reviews the substantive reasonableness of a sentence for
an abuse of discretion. See United States v. Lasley, 832 F.3d 910, 913 (8th Cir.
2016). The district court stated that it “considered all of the factors under 3553(a),”
including his age, “letters of support from your friends and family,” and his
employment. It also discussed his family life, expressing its concern that there were
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“three boys in your life who you are not biologically related to who you sought out
and brought into your home who are all of the same age and it’s that same age that is
repeated over and over again in your message threads and your child pornography
images.” Finally, the court noted that the type of pornography Horton viewed was
“some of the most horrific stuff I’ve seen.” The district court did not abuse its
discretion in imposing a within-guidelines sentence.
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The judgment is affirmed.
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