United States v. Jensen

• Decision Date: 24 August 2016
• Docket Number: No. 15–2156,15–2156
• Citation: 834 F.3d 895
• Parties: United States of America, Plaintiff–Appellee v. Jennifer Marie Jensen, Defendant–Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

834 F.3d 895

United States of America, Plaintiff–Appellee

v.Jennifer Marie Jensen, Defendant–Appellant

No. 15–2156

United States Court of Appeals, Eighth Circuit.

Submitted: June 17, 2016

Filed: August 24, 2016

Rehearing and Rehearing En Banc Denied September 30, 2016^*

Counsel who represented the appellant was Alfredo G. Parrish of Des Moines, IA.

Counsel who represented the appellee was Craig Peyton Gaumer, AUSA, of Des Moines, IA.

Before MURPHY, BRIGHT, and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

Jennifer Jensen (“Jennifer”)¹ pled guilty to receiving child pornography in violation of 18 U.S.C. §§ 2252(a)(2) and 2. The district court² sentenced Jennifer to the statutory maximum of 240 months imprisonment pursuant to 18 U.S.C. § 2252(b)(1). Jennifer appeals her sentence, arguing the district court erred in applying an enhancement for obstruction of justice and in denying a reduction for acceptance of responsibility. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

I.

In 2006, while pregnant with their daughter, H.J., Jennifer married Brad Jensen (“Brad”), who had been convicted in Iowa state court in 1999 for engaging in lascivious acts with his then six-year-old daughter. Brad and Jennifer each had older children from previous relationships. The couple frequently used methamphetamine together, creating a volatile relationship that included violence and sexual deviance by both partners. Jennifer left Brad in March 2013. Two months later, Jennifer reported to local law enforcement officers that Brad had sexually abused M.H., her teenage daughter, years before. Jennifer's report was made only after M.H. disclosed the abuse to someone outside of the family. Law enforcement officers interviewed M.H., who confirmed the sexual abuse and made allegations that led law enforcement to conduct forensic interviews with all of Brad and Jennifer's children.

H.J., who was six years old at the time of sentencing, underwent three interviews, all of which were recorded and viewed by the district court prior to Jennifer's sentencing hearing. H.J. provided the following information during the first two interviews. On multiple occasions, Brad instructed H.J. to remove her clothes when she returned home from school, and if she refused, Brad spanked her or threatened to tell Jennifer “the truth.” Brad took “inappropriate” pictures of H.J. while she bathed and changed clothes. On several occasions, Brad took H.J. upstairs, removed their clothes, and napped with her. During the naps, Brad would kiss H.J. on her neck and perform oral intercourse on her. H.J. described pain from both oral and anal intercourse with Brad as well as incidents involving Brad ejaculating on her or into her mouth. H.J. reported that Jennifer knew Brad kissed H.J. because she observed the kisses to make sure it did not “go too far.”

During the third forensic interview, H.J. revealed additional information specific to Jennifer's involvement in the sexual abuse. H.J. initially reported that Jennifer took good care of the children and did not “do anything wrong,” but later stated that Jennifer was present when Brad “kid molested” her. Brad and Jennifer were under the influence of drugs often. H.J. disclosed that Jennifer tricked H.J. into coming into her bedroom for a surprise, then put a knife in the door so no one else could enter the bedroom. H.J. did not feel comfortable revealing what happened in the bedroom on that occasion, but stated that Jennifer told H.J. not to talk about the abuse because “it's a felony.” H.J. claimed Jennifer told her that Jennifer might go to jail because of what had happened and that she was supposed to keep it a secret because it was “freaky” and “weird.”

H.J.'s disclosures during the first forensic interview established probable cause for a search warrant to be executed at the residence Brad and Jennifer had shared. Law enforcement officers discovered over 18,000 images and 1,700 videos of child pornography on seized computer media, including naked images of H.J. and videos of Brad sexually abusing H.J. Fifty-eight of the child pornography images were attributed directly to Jennifer. Some of the images from the Jensen's home depicted Brad sexually abusing an infant; an adult female could be seen in the photographs assisting Brad, but the female's face was not visible. The infant was later identified as Brad's three-month-old granddaughter, J.S.

Jennifer was originally interviewed in July 2013 about the sexual abuse, and denied any involvement. The government later conducted two proffer interviews of Jennifer in an attempt to confirm who had assisted Brad in the sexual abuse of J.S. In October 2013, Jennifer claimed that she had been so high on methamphetamine while with Brad that she could not remember if she was the woman in the pictures with Brad and J.S. In December 2013, Jennifer denied being the woman in the pictures, saying “[I]t's not me. I'm not the type of person to do something like that.” She also denied touching any of the children in a sexually abusive manner during a psychological evaluation in May 2014.

Brad eventually admitted his sexual abuse of both H.J. and J.S. as well as production of child pornography.³ During a December 2013 interview, Brad stated that Jennifer assisted him in sexually abusing J.S. and photographing the abuse. Further, Brad advised that Jennifer was present and involved when he took sexually explicit pictures and videos of H.J. During a proffer interview, Brad stated that he and Jennifer sexually abused J.S. on two occasions, captured pictures of at least one of the incidents of abuse, and viewed the images a few times afterward. Specific to H.J., Brad stated that Jennifer frequently told H.J. what to do with Brad, i.e., giving instructions on how to perform oral intercourse on Brad. Jennifer watched Brad record the abuse, and the couple watched the sexually explicit videos of H.J. for sexual arousal on several occasions. Brad's statements were corroborated by H.J.'s forensic interviews.

A grand jury originally returned a three-count indictment against Jennifer, accusing her of two counts of production of child pornography in violation of 18 U.S.C. §§ 2251(a), 2256, and 2, and one count of possession of child pornography in violation of 18 U.S.C. §§ 2252(a)(4)(B), 2252(b)(2), 2256, and 2. A superseding indictment charged Jennifer with six counts of production of child pornography involving an infant female in violation of 18 U.S.C. §§ 2251(a), 2256, and 2, as well as possession of child pornography in violation of 18 U.S.C. §§ 2252(a)(4)(B), 2252(b)(2), 2256, and 2. Ultimately, Jennifer pled guilty only to receipt of child pornography in violation of 18 U.S.C. §§ 2252(a)(2) and 2, in part to avoid making H.J. testify against her parents as would have been necessary under the original charges.

Pursuant to United States Sentencing Guidelines (“U.S.S.G.”) § 2G2.2(c)(1), Jennifer's sentence was calculated under U.S.S.G. § 2G2.1 because the offense involved sexual exploitation of a minor by production of sexually explicit visual or printed material. Under U.S.S.G. § 2G2.1, Jennifer's base offense level was 32. The following enhancements were then added: a four-level enhancement under U.S.S.G. § 2G2.1(b)(1)(A) because the offense involved a minor under the age of twelve; a two-level enhancement under U.S.S.G. § 2G2.1(b)(2)(A) because a sexual act was committed; a four-level enhancement under U.S.S.G. § 2G2.1(b)(4) because the offense involved material that portrayed sadistic or masochistic conduct; a two-level enhancement under U.S.S.G. § 2G2.1(b)(5) because Jennifer was the parent and relative of the victims; a two-level enhancement under U.S.S.G. § 3C1.1 for obstruction of justice because Jennifer told H.J. not to talk about her involvement; and a two-level enhancement under the grouping rules set forth in U.S.S.G. §§ 3D1.2, 3D1.3, and 3D1.4 because the offense involved multiple victims. The combined adjusted offense level totaled 48, but the district court treated Jennifer's total offense level as a 43, the ceiling of the Guidelines sentencing table, pursuant to Guidelines Chapter 5, Part A, cmt. n.2. Jennifer objected to the application of the obstruction of justice enhancement and argued that she earned a three-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. The district court applied the obstruction of justice enhancement, along with the other enhancements listed above, and denied Jennifer's request of an acceptance of responsibility reduction. The Guidelines provide for life imprisonment for a level 43 offense; however, 18 U.S.C. § 2252(b)(2) limits the statutory maximum sentence for a violation of 18 U.S.C. § 2252(a)(2) to twenty years. The district court discussed the pertinent 18 U.S.C. § 3553(a) factors, then imposed the 240 month sentence –below the Guidelines minimum but equal to the statutory maximum sentence. This appeal followed.

II.

A.

On appeal, Jennifer first argues the district court erred when it applied the obstruction of justice enhancement. An appellate court reviewing a district court's sentencing decision “must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” United States v. Beckman, 787 F.3d 466, 494 (8th Cir. 2015) (quoting Gall v. United States, 552, U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) ). We review a district court's factual findings for clear error and its application of the Guidelines de novo. United States v. Muckle, 755 F.3d 1024, 1025 (8th Cir. 2014).

U.S.S.G. § 3C1.1 provides for a two-level increase in a defendant's offense level if the defendant obstructs justice. “[T]hreatening, intimidating, or...