United States v. Mark David McGinley

United States Court of Appeals
For the Eighth Circuit
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No. 15-3852
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Mark David McGinley
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: October 17, 2016
Filed: February 27, 2017
[Unpublished]
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Before LOKEN, SMITH, and COLLOTON, Circuit Judges.
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LOKEN, Circuit Judge.
Mark David McGinley pleaded guilty to one count of production of child
pornography in violation of 18 U.S.C. § 2251(a) and (e). The government dismissed
23 other counts charging child pornography production, distribution, and possession.
At sentencing, the district court1 overruled McGinley’s objection and imposed a five-
level adjustment, finding that he is a Repeat and Dangerous Sex Offender Against
Minors. See U.S.S.G. § 4B1.5(b). This resulted in a total offense level of 43, the
highest possible, and an advisory guidelines range of 360 months in prison, the
statutory maximum sentence. The court imposed a 360-month sentence. McGinley
appeals the sentence, arguing the district court procedurally erred by failing to make
an explicit finding that he presents a continuing danger to the public, as the
background commentary to § 4B1.5 requires, and by failing to consider and explain
the 18 U.S.C. § 3553(a) sentencing factors. We affirm.
After law enforcement downloaded over 4,000 child pornography images from
an IP address registered to McGinley, officers seized computer equipment during a
warrant search of his residence. Review of that equipment yielded over 100,000
images of child pornography, over 4,000 pictures McGinley took of minor girls in his
neighborhood from 2010 to 2013, and a folder entitled “Homemade” organized into
16 subfolders depicting McGinley sexually abusing a prepubescent girl. McGinley
admitted the “Homemade” images depicted abuse of his then-eight-year-old niece.
When interviewed, the niece told law enforcement that the incidents occurred on
multiple occasions when her brother was not present, McGinley bribed her, and he
asked her to keep their contacts secret. McGinley then admitted abusing his niece on
three occasions and videotaping the abuse over a one-and-a-half year period from
2003 to 2005. He said he digitized and saved the images for over 10 years so he
would not need to “find” other victims.
A. The § 4B1.5(b) adjustment applies if “the defendant’s instant offense of
conviction is a covered sex crime . . . and the defendant engaged in a pattern of
activity involving prohibited sexual conduct.” McGinley’s offense was a covered sex
1
The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
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crime, and his activity involved prohibited sexual conduct. See § 4B1.5 cmt. n.2 &
n.4(A). He “engaged in a pattern of activity” because he admitted that he engaged in
prohibited sexual conduct with a minor on at least two occasions. Id. at cmt. n.4(B).
Thus, the record makes clear that McGinley committed a covered sex crime and
engaged in a pattern of activity involving prohibited sexual conduct.
On appeal, McGinley argues the district court erred because there is no express
finding, as the background commentary to § 4B1.5 requires, that he “present[s] a
continuing danger to the public.” This contention is without merit. The findings
required in applying § 4B1.5(b) are found in the provision’s application notes, not in
the background commentary. See United States v. Wardlow, 830 F.3d 817, 823-24
(8th Cir. 2016). Moreover, the sentencing transcript makes clear that the district court
did focus on whether McGinley presents a continuing danger to the public:
And all we have to do is look at what you did physically to a very
young, very vulnerable human being here to realize that you are a person
who is dangerous, and that fear is an appropriate response to you.
* * * * *
So that’s the sentence. . . . I realize the danger . . . photographing
your neighbor children and neighbors, I mean that’s pretty creepy
behavior, especially coming from somebody who is a pedophile and who
has [distributed] all the child pornography.
The district court committed no clear error or procedural error in imposing the
§ 4B1.5(b) adjustment.
B. McGinley next argues the district court procedurally erred by failing to
consider and explain the § 3553(a) factors, focusing only on public safety, while
ignoring a psychosexual evaluation showing that he is treatable and poses a low risk
of recidivism. McGinley failed to object to the district court’s explanation at
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sentencing, so this argument was not preserved. “We will not sustain a procedural
challenge to the district court’s discussion of the 18 U.S.C. § 3553(a) sentencing
factors by a defendant who did not object to the adequacy of the court’s explanation
at sentencing.” United States v. Maxwell, 778 F.3d 719, 734 (8th Cir.), cert. denied,
135 S. Ct. 2390, 135 S. Ct. 2827, 136 S. Ct. 176, and 136 S. Ct. 319 (2015).
Moreover, the district court’s explanation at sentencing was more than
adequate “to allow for meaningful appellate review.” Gall v. United States, 552 U.S.
38, 50 (2007). The court reviewed the PSR, heard both parties argue the § 3553(a)
factors, asked detailed questions, noted that the plea agreement allowed McGinley to
avoid punishment for 23 other child pornography charges, compared McGinley’s
offense conduct with that of other child pornographers (“it couldn’t be much worse
than an eight-year old victim over multiple times”), and made the sentence concurrent
with any state incarceration resulting from McGinley’s abuse of his niece. See United
States v. Roberts, 747 F.3d 990, 992 (8th Cir. 2014); United States v. Battiest, 553
F.3d 1132, 1136 (8th Cir.), cert. denied, 556 U.S. 1265 (2009). McGinley’s “within-
guidelines sentence is presumptively reasonable on appeal.” United States v.
Borromeo, 657 F.3d 754, 756 (8th Cir. 2011).
The judgment of the district court is affirmed.
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