United States v. Daniel Beenen , 305 F. App'x 307 ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-2097
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Daniel Eric Beenen, *
* [UNPUBLISHED]
Appellant. *
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Submitted: September 22, 2008
Filed: December 31, 2008
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Before BYE, BEAM and COLLOTON, Circuit Judges.
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PER CURIAM.
Daniel Eric Beenen appeals his sentence after pleading guilty to four charges
involving the receipt and possession of child pornography. In calculating Beenen's
offense level under the United States Sentencing Guidelines (U.S.S.G.), the district
court1 imposed several enhancements, including a four-level increase for possessing
materials with sadistic, masochistic or violent content and a five-level increase for
engaging in a pattern of sexual abuse or exploitation of a minor. See U.S.S.G. §§
1
The Honorable Mark W. Bennett, United States District Judge for the Northern
District of Iowa.
2G2.2(b)(4) & (b)(5). After determining that Beenen's advisory Guidelines range was
210-262 months' imprisonment, the district court imposed the statutory maximum
sentence available for each offense: 240 months' imprisonment on Count 1, and three
terms of 120 months' each on Counts 2-4, to run concurrently with the sentence
imposed on Count 1. On appeal, Beenen contests the two enhancements and
challenges his sentence as substantively unreasonable.
We review the district court's application and interpretation of the Guidelines
de novo, while findings of fact are reviewed for clear error. United States v. Johnston,
533 F.3d 972, 976 (8th Cir. 2008). Applying those standards, we have no hesitation
in concluding that the district court properly assessed the four-level enhancement for
possessing "material that portrays sadistic or masochistic conduct or other depictions
of violence." U.S.S.G. § 2G2.2(b)(4). Because the Guidelines do not define the terms
"sadistic," "masochistic," or "depictions of violence," their ordinary meanings guide
our review. United States v. Parker, 267 F.3d 839, 847 (8th Cir. 2001). Suffice it to
say that in this case, we are satisfied that certain images Beenen possessed fall within
the ordinary meaning of at least some of those terms. E.g., id. ("Given the plain
meaning of 'violence,' it is difficult to imagine that the sexual penetration with a
foreign object of a minor female would not qualify.").
We likewise conclude that the district court properly assessed the five-level
increase for engaging in a pattern of sexual abuse or exploitation of a minor. U.S.S.G.
§ 2G2.2(b)(5). That enhancement is warranted where a defendant has engaged in two
or more instances of sexual abuse or exploitation of a minor, whether or not the
incidents occurred during the course of the instant offense, involved the same minor,
or resulted in a conviction. Id. § 2G2.2(b)(5), cmt. n.1. At Beenen's sentencing
hearing, his twenty-five-year-old nephew, M.S., testified at length about the many
instances of sexual abuse he suffered at his uncle's hands during his preteen and early
teenage years. The district court found M.S. to be a very credible witness,
notwithstanding the fact that certain details of his story were contradicted by other
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witnesses. The court also opined that the passage of time might account for the
witnesses' differing recollections of those details. On appeal, Beenen urges us to
discount M.S.'s testimony because of those same discrepancies, and to conclude that
the enhancement is lacking in evidentiary support. We decline to do so. As we have
often remarked, "'credibility findings are well-nigh unreviewable, so long as the
findings are not internally inconsistent or based on testimony that is incoherent,
implausible, or contradicted by objective evidence in the case.'" Johnston, 533 F.3d
at 976 (emphasis added) (quoting United States v. Jones, 254 F.3d 692, 695 (8th Cir.
2001)). As the district court's finding with regard to M.S.'s credibility suffers from
no such deficiencies, this case is no exception. And in light of that testimony, the
district court did not clearly err in finding that Beenen engaged in a pattern of sexual
abuse or exploitation of a minor within the meaning of section 2G2.2(b)(5).
Finally, Beenen argues that his 240-month sentence is unreasonable and that a
downward variance was warranted based on his community involvement, familial
obligations, lack of criminal history and other circumstances. We review the
substantive reasonableness of a sentence for an abuse of discretion, and accord a
presumption of reasonableness to a sentence within the advisory range. United States
v. Zastrow, 534 F.3d 854, 855-56 (8th Cir. 2008). Here, we find nothing in Beenen's
arguments to rebut that presumption. See United States v. Peck, 496 F.3d 885, 891
(8th Cir. 2007) (describing the showing required to rebut the presumption), cert.
denied, 128 S. Ct. 1271 (2008). While the circumstances cited by Beenen indicate
that another sentence might also have been reasonable in this case, it does not follow
that the sentence he actually received is unreasonable. The record reflects that the
district court considered the parties' arguments, carefully weighed the relevant
sentencing factors delineated in 18 U.S.C. § 3553(a), and gave detailed reasons for
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selecting this sentence from the range of permissible alternatives. As such, we
conclude that Beenen's 240-month sentence is within the bounds of the district court's
considerable sentencing discretion.
For the foregoing reasons, the judgment of the district court is affirmed.
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