United States v. Brion Carey ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-1977
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Brion Adam Carey
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Western District of Arkansas - Fayetteville
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Submitted: March 15, 2021
Filed: May 17, 2021
[Unpublished]
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Before GRUENDER, KELLY, and GRASZ, Circuit Judges.
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PER CURIAM.
In 2019, a jury convicted Brion Carey of two counts of transporting child
pornography, 18 U.S.C. § 2252A(a)(1), and one count of accessing a device with the
intent to view child pornography, id. § 2252A(a)(5)(B). The district court1 sentenced
him to 180 months’ imprisonment. He now appeals his sentence.
Carey challenges the district court’s application of a five-level sentencing
enhancement for “engag[ing] in a pattern of activity involving the sexual abuse or
exploitation of a minor.” United States Sentencing Commission, Guidelines Manual,
§ 2G2.2(b)(5) (Nov. 2018). We review the district court’s factual findings for clear
error and its application of the Guidelines de novo. United States v. Cannon, 703
F.3d 407, 415 (8th Cir. 2013). “The government bears the burden of proving an
enhancement applies by a preponderance of the evidence.” United States v. Ford, 987
F.3d 1210, 1214 (8th Cir. 2021).
For certain offenses involving child pornography, a five-level sentencing
enhancement applies “[i]f the defendant engaged in a pattern of activity involving the
sexual abuse or exploitation of a minor.” USSG § 2G2.2(b)(5). The commentary for
this Guideline defines a “pattern of activity” as “any combination of two or more
separate instances of the sexual abuse or sexual exploitation of a minor by the
defendant, whether or not the abuse or exploitation (A) occurred during the course
of the offense; (B) involved the same minor; or (C) resulted in a conviction for such
conduct.” Id. § 2G2.2 comment. (n.1); see also United States v. Ashley, 342 F.3d
850, 852 (8th Cir. 2003). “Sexual abuse or exploitation” includes “conduct described
in” an enumerated list of federal offenses (including the production of child
pornography) and “an offense under state law, that would have been an offense under
[the list of federal offenses]” had it fallen within federal jurisdiction. USSG § 2G2.2
comment. (n.1). The definition of “sexual abuse or exploitation” expressly excludes
“possession, accessing with intent to view, receipt, or trafficking in material relating
to the sexual abuse or exploitation of a minor.” Id.
1
The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.
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Here, the record shows that in 2004 Carey was charged with multiple state
offenses based on his production and storage of pornographic videos involving
minors. The government also provided documents related to these charges, including
the affidavit of probable cause, which contains statements Carey made at the time of
his arrest admitting to filming minors—statements Carey did not deny at sentencing.
Based on these documents, the district court found that on two separate occasions
Carey filmed a sixteen-year-old engaged in “sexually explicit conduct.” This finding
was not clearly erroneous. And it is sufficient to establish by a preponderance of the
evidence that Carey twice produced child pornography as that offense is defined in
18 U.S.C. § 2251(a). See 8th Cir. Model Crim. Jury Instr. § 6.18.2251(a) (2017)
(outlining the elements of § 2251(a)). Because production of child pornography is
among the offenses listed in the relevant Guidelines definition of “sexual abuse or
exploitation of a minor,” see USSG § 2G2.2 comment. (n.1), the district court did not
err in applying the five-level sentencing enhancement pursuant to § 2G2.2(b)(5) when
calculating Carey’s offense level.
We affirm the judgment of the district court.
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