U.S. v. Kiel, 05-3346.

• Citation: 454 F.3d 819
• Decision Date: 20 July 2006
• Docket Number: No. 05-3346.,05-3346.
• Parties: UNITED STATES of America, Appellee, v. James A. KIEL, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

454 F.3d 819

UNITED STATES of America, Appellee, v. James A. KIEL, Appellant.

No. 05-3346.

United States Court of Appeals, Eighth Circuit.

Submitted: March 14, 2006.

Filed: July 20, 2006.

Thomas F. Flynn, St. Louis, MO, for appellant.

Carrie Costantin, Asst. U.S. Attorney, St. Louis, MO, for appellee.

Before ARNOLD, JOHN R. GIBSON, and SMITH, Circuit Judges.

SMITH, Circuit Judge.

James A. Kiel pleaded guilty to five counts of Production of Child Pornography ("Production Counts"), in violation of 18 U.S.C. § 2251(a), and one count of Felon in Possession of a Firearm, in violation of 18 U.S.C. § 922(g)(1). At the sentencing hearing, the district court¹ found that the Production Counts should not be grouped and that Kiel's adjusted offense level was 33. The district court added five levels based on the number of units. The district court, therefore, set Kiel's offense level at 38 with a criminal history Category II, yielding an advisory Guidelines range of 262 to 327 months' imprisonment. After holding that Kiel was not eligible for a two-level reduction for acceptance of responsibility, the district court sentenced Kiel to 327 months' imprisonment. Kiel appeals his sentence, arguing that the district court erred in refusing to group the Production Counts, or, in the alternative, that the district court erred in its calculation under U.S.S.G. § 3D1.4 by adding five levels to the adjusted offense level. In addition, Kiel argues that the district court erred in refusing to grant him a two-level reduction for acceptance of responsibility. We affirm.

I. Background

Kiel was indicted on five counts of Production of Child Pornography, in violation of 18 U.S.C. § 2251(a), and one count of Felon in Possession of a Firearm, in violation of 18 U.S.C. § 922(g)(1). During Kiel's trial, the government's witnesses described the search of Kiel's residence and the seizure of the child pornography videotapes. The government played all five child pornography tapes Kiel produced for the jury, as well as other tapes, to establish Kiel's pattern of using his video camera to tape nude and seminude minor females. On the final day of trial, as the government was winding up its case, Kiel pleaded guilty to all counts.

In Kiel's plea agreement, he admitted to knowingly producing the five videotapes by filming several minors while they slept at his residence. Kiel exposed their genitals and displayed them in a lascivious manner, and, on some occasions, he touched the minors' genitals. Kiel admitted to knowingly filming at least two females under the age of twelve. He also admitted that two of the minor females were his relatives.

Kiel objected to the presentence investigation report ("PSR"), arguing that he was entitled to a two-level offense reduction for acceptance of responsibility because he pleaded guilty. The district court denied the reduction, finding that Kiel's acceptance was not timely and that he did not fully admit his conduct. Kiel also objected to the PSR's application of the grouping rules under the 2000 version of the United States Sentencing Guidelines because the PSR did not group the five Production Counts. Kiel contended that, because there were only two identified victims, the five counts should have been grouped into two groups—one for each identified victim.

The district court overruled the objection and held that U.S.S.G. §§ 3D1.2 and 2G2.1 of the Guidelines make it clear that Production of Child Pornography offenses are not to be grouped, stating:

And it is also the situation where there's no dispute that there was more than one minor child involved. I know you dispute whether there was more than two. But here we're talking about two minor children involved in these five counts. And each of these counts involved the filming of the minor children, and in some of them there was also some physical touching of the genital areas by Mr. Kiel. And these are all separate events. They took place over a period of time. And I don't believe that these are the kinds of offenses that fall within the grouping provisions of the guidelines.

The district court adopted the factual findings of the PSR. According to the PSR, an examination of the videotapes seized at Kiel's residence revealed images of children engaged in sexually explicit conduct. Each of the Production Counts appeared on a separate videotape, except that the Count IV videotape showed Kiel abusing two minor females rather than one. The PSR, therefore, recommended that five levels be added to the base offense level of 33 for a total offense level of 38.

Kiel objected to the PSR's addition of five levels and contended that only two levels should have been added—one for each of the two identified victims. The district court responded that it was "appropriate for the Probation Officer not to group these offenses. And so I am going to overrule the defendant's objection to the calculation of the offense level." An offense level of 38 and a criminal history Category II yielded an advisory Guidelines range of 262 to 327 months. Consistent with the PSR recommendation, the district court sentenced Kiel to 327 months' imprisonment and a five-year term of supervised release.

After the decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we granted Kiel's motion for remand. At resentencing, the district court stated that it would rely on the previous record including objections. The district court reiterated its previous finding that the Guidelines range was 262 to 327 months and again sentenced Kiel to 327 months' imprisonment and a five-year term of supervised release.

II. Discussion

Kiel raises three arguments on appeal. First, Kiel argues that the district court erred in calculating the correct Guidelines range by failing to group the Production Counts. Second, Kiel argues that even if the district court committed no error by refusing to group the Production Counts, the district court erred in increasing his adjusted offense level by five levels, resulting in a total offense level of 38. Finally, Kiel argues that the district court erred in refusing to grant him acceptance of responsibility.

A. Grouping of the Production Counts

Kiel argues that the district court erred in refusing to group the five Production Counts together, asserting that Counts II, IV, and V involved minor child A.K. and should be grouped together, while Count IV involved minor child P.C. and should constitute a separate group under § 2G2.1(c)(1). Thus, Kiel asserts that the district court should have created two groups, one for each identified victim. Based on this grouping, Kiel argues the district court should have applied the multiple-count adjustment under § 3D1.4, resulting in a total offense level of 35 once two levels were added to the adjusted offense level of 33. We review de novo a district court's interpretation and application of the Guidelines. United States v. Mathijssen, 406 F.3d 496 (8th Cir.2005).

Section 2G2.1(d) of the Guidelines — "Sexual Exploitation of a Minor by Production of Sexually Explicit Visual or Printed Material"—provides that "[i]f the offense involved the exploitation of more than one minor, Chapter Three, Part D (Multiple Counts) shall be applied as if the exploitation of each minor had been contained in a separate count of conviction." Application Note 5 to § 2G2.1 then explains:

For the purposes of Chapter Three, Part D (Multiple Counts), each minor exploited is to be treated as a separate minor. Consequently, multiple counts involving the exploitation of different minors are not to be grouped together under § 3D1.2 (Groups of Closely Related Counts). Subsection (d)(1) directs that if the relevant conduct of an offense of conviction includes more than one minor being exploited, whether specifically cited in the count of conviction or not, such minor shall be treated as if contained in a separate count of conviction.

Section 3D1.2 of the Guidelines "set[s] forth the circumstances in which counts are to be grouped together into a single Group." Application Note 1 to U.S.S.G. § 3D1.2. Specifically excluded from the operation of this section is "Sexual Exploitation of a Minor by Production of Sexually Explicit Visual or Printed Material" under § 2G2.1. Furthermore, § 3D1.2 "does not authorize the grouping of offenses that cannot be considered to represent essentially one composite harm (e.g., robbery of the same victim on different occasions involves multiple, separate instances of fear and risk of harm, not one composite harm)." Application Note 4 to U.S.S.G. § 3D1.2.

Therefore, considering the commentary to §§ 2G2.1 and 3D1.2, we hold that the district court properly refused to group the Production Counts. Each time that Kiel molested a child, he inflicted a separate and distinct harm upon that child; therefore, his actions cannot be considered substantially the same harm for grouping purposes under § 3D1.2.

B. Increasing Offense Level by Five Units

In the alternative, Kiel argues that if the grouping calculation is not applicable, the district court erred in finding an adjusted offense level of 38 because the PSR stated that there are a total of five units under § 3D1.4 and increased the adjusted offense level by five units for a total of 38 instead of following § 3D1.4, which states that five units would only cause an increase of four levels, for an offense level of 37 and an advisory Guidelines range of 235 to 293 months' imprisonment.

"Under § 2G2.1, the offense level of a defendant who pleads guilty to sexual exploitation of children . . . is...