United States v. Kenneth Crum, Jr. ( 2022 )

United States Court of Appeals
For the Eighth Circuit
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No. 21-3505
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United States of America
Plaintiff - Appellee
v.
Kenneth Howard Crum, Jr.
Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Western
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Submitted: October 17, 2022
Filed: November 28, 2022
[Unpublished]
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Before LOKEN, GRUENDER, and GRASZ, Circuit Judges.
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PER CURIAM.
Kenneth Crum, Jr. was sentenced to 210 months’ imprisonment after pleading
guilty to receipt and possession of child pornography. He appeals his sentence,
arguing that his prior state harassment convictions were “relevant conduct” that the
district court 1 should have excluded from its criminal-history calculation. We
affirm.
Between May and October 2020, Kenneth Crum, Jr. anonymously published
photographs of women and young girls on a message-board website known as
“COOP.” Crum typically included commentary with the photographs expressing his
desire to sexually assault the depicted female. Among the photographs that Crum
published were nude or partially nude images of S.H. and N.C., two women who
lived near him. Both women later confirmed to investigators that they had neither
given the photographs to Crum nor consented to his publishing them.
In November 2020, Crum’s ex-wife discovered that her name, photograph,
cellphone number, age, and state of residence were featured in a message thread on
COOP titled “Text ur sluts.” She alerted the police, who soon determined that Crum
was responsible. After the police learned more about Crum’s online activity,
including his publication of S.H. and N.C.’s photographs, they obtained a warrant to
seize Crum’s cellphone and other electronic equipment. Examination of the devices
revealed more than 5,000 images of child pornography, many of which depicted
prepubescent girls.
Crum was arrested and charged in state court with five counts of harassment,
based on the publication of S.H. and N.C.’s photographs on COOP, see Iowa Code
§ 708.7(1)(a)(5), and eleven counts of sexual exploitation of a minor, based on the
child pornography found on his electronic devices, see id. § 728.12(3). He pleaded
guilty to two harassment counts and was sentenced to 2 years’ imprisonment. The
other three harassment counts, as well as the eleven counts of sexual exploitation of
a minor, were dismissed. Crum was then federally indicted on one count of receipt
of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2) and (b)(1), and one
1
The Honorable Stephanie M. Rose, Chief Judge, United States District Court
for the Southern District of Iowa.
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count of possession of child pornography, in violation of 18
U.S.C. §§ 2252A(a)(5)(B) and (b)(2). He pleaded guilty to both counts.
The presentence investigation report (“PSR”) assessed three criminal-history
points for Crum’s state harassment convictions. Besides the harassment convictions,
Crum had no criminal history. The PSR ultimately calculated a criminal-history
category of II and a total offense level of 34, resulting in an advisory sentencing
guidelines range of 168 to 210 months. Although Crum noted in his sentencing
memorandum that his guidelines range would have been 151 to 188 months had the
harassment convictions been excluded from his criminal-history calculation, he did
not object to the PSR’s criminal history-calculation or its calculated guidelines
range.
At sentencing, Crum reiterated that he did not object to the PSR’s guidelines
range. The district court then adopted that range and sentenced Crum to 210 months’
imprisonment followed by 10 years’ supervised release. Crum appealed.
Crum argues that the guidelines range adopted by the district court was
erroneous. He contends that the conduct underlying his harassment convictions was
intertwined with his child-pornography offenses, making it “relevant conduct” under
U.S.S.G. § 1B1.3 that the court should have excluded from its calculation of his
criminal history. Crum asserts that the district court must therefore resentence him.
See United States v. Trung Dang, 907 F.3d 561, 564 (8th Cir. 2018) (noting that a
non-harmless error in calculating a defendant’s guidelines range requires
resentencing).
As Crum did not object below, we review his sentence for plain error only.
See id. To establish plain error, Crum must show not only that the district court’s
guidelines calculation was clearly or obviously erroneous, but that the erroneous
calculation “affected his substantial rights,” see United States v. Combs, 44 F.4th
815, 818 (8th Cir. 2022) (brackets omitted), meaning that it is reasonably likely that
Crum “would have received a lighter sentence but for the error,” see Trung Dang,
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907 F.3d at 564. And even if Crum can make this showing, we will order
resentencing only if the error “seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” See id.
We find no plain error in the district court’s guidelines range. Because Crum’s
harassment convictions were “severable, distinct offense[s]” from his child-
pornography offenses, the court did not err in including them in its calculation of
Crum’s criminal history. See United States v. Smith, 944 F.3d 1013, 1016 (8th Cir.
2019).
Under the sentencing guidelines, a district court should add three criminal-
history points “for each prior sentence of imprisonment exceeding one year and one
month.” U.S.S.G. § 4A1.1(a). The guidelines define a “prior sentence” as “any
sentence previously imposed . . . for conduct not part of the instant offense.”
U.S.S.G. § 4A1.2(a)(1). Conduct underlying a previously imposed sentence is “not
part of the instant offense” if the “former conviction was a severable, distinct offense
from the latter.” United States v. Pepper, 747 F.3d 520, 526 (8th Cir. 2014). By
contrast, conduct underlying a previously imposed sentence is part of the instant
offense if it is “relevant conduct.” U.S.S.G. § 4A1.2, cmt. 1; see U.S.S.G.
§ 1B1.3(a)(1) (defining “relevant conduct” as “all acts and omissions . . . that
occurred during the commission of the offense of conviction, in preparation for that
offense, or in the course of attempting to avoid detection or responsibility for that
offense”). Whether the conduct underlying a defendant’s previously imposed
sentence is relevant conduct depends on several factors, including “temporal and
geographical proximity, common victims, common scheme, charge in the
indictment, and whether the prior conviction [wa]s used to prove the instant
offense.” Smith, 944 F.3d at 1016.
Crum argues that the conduct underlying his state harassment convictions—
posting photographs of S.H. and N.C. on COOP—was relevant to his child-
pornography offenses for two reasons. First, he says that his COOP activity occurred
at the same time that he was receiving and possessing child pornography. Second,
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he says that his COOP activity is what caused law enforcement to seek the search
warrant that led to his conviction for the child-pornography offenses, making the
offenses “intertwined.”
Notwithstanding these two common factors, Crum’s harassment and child-
pornography offenses are not as related as he insists. Indeed, several other factors
make clear that the offenses are severable and distinct.
First, the offenses lack not only a common victim but a common category of
victim. The victims of the harassment offenses were S.H. and N.C., adult women
from Crum’s local community, while the victims of the child-pornography offenses
were minors or prepubescent children from various locations, many of whom remain
unidentified. Second, the offenses lack a common purpose or motive. Crum’s
motive for committing the harassment offenses was to “intimidate, annoy, or alarm”
S.H. and N.C., see Iowa Code § 708.7(1)(a)(5), while his motive for committing the
child-pornography offenses presumably was to view or possess sexually explicit
images of children. Finally, none of the pictures of S.H., N.C., or any other female
that Crum published on COOP were used to prove his child-pornography offenses.
Indeed, his COOP conduct was not charged in the federal indictment because the
images that he published there, unlike those found on his electronic devices, were
not child pornography. See 18 U.S.C. § 2256(8) (defining “child pornography”).
In short, the conduct underlying Crum’s harassment convictions was “not part
of the instant [child-pornography] offense,” see U.S.S.G. § 4A1.2(a)(1), and
therefore not “relevant conduct,” see U.S.S.G. § 1B1.3(a)(1). The district court thus
did not err, much less clearly or obviously err, in including the harassment offenses
in its calculation of Crum’s criminal history.
For the foregoing reasons, we affirm Crum’s sentence.
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