United States v. Kempter

• Decision Date: 29 March 2022
• Docket Number: No. 21-1331,21-1331
• Parties: UNITED STATES of America, Plaintiff - Appellee v. Nathan Lee KEMPTER, also known as Nathan L. Kempter, Defendant - Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

29 F.4th 960

UNITED STATES of America, Plaintiff - Appellee

v.Nathan Lee KEMPTER, also known as Nathan L. Kempter, Defendant - Appellant

No. 21-1331

United States Court of Appeals, Eighth Circuit.

Submitted: November 18, 2021

Filed: March 29, 2022

Steven A. Russell, Tessie Leigh Seiler Smith, Assistant U.S. Attorneys, U.S. Attorney's Office, Lincoln, NE, for Plaintiff-Appellee.

Nathan Lee Kempter, Federal Correctional Institution, Phoenix, AZ, Pro Se.

David R. Stickman, Federal Public Defender, Federal Public Defender's Office, Omaha, NE, for Defendant-Appellant.

Before BENTON, KELLY, and ERICKSON, Circuit Judges.

KELLY, Circuit Judge.

Nathan Kempter was convicted by a jury of attempted enticement of a minor and interstate travel with intent to engage in illicit sexual conduct. On appeal, Kempter challenges the sufficiency of the evidence, as well as several aspects of his sentence. Having jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

I.

In July 2019, at age 32, Kempter began corresponding with then-14-year-old C.I. through the social media site Reddit, specifically on a Subreddit for runaway teens. After their initial contact, on or about July 23, 2019, C.I. requested they use the social media website Tumblr to communicate instead. At first, Kempter and C.I. discussed how Kempter could help C.I. run away from home, but Kempter then introduced a variety of sexual topics to their conversations. Kempter knew C.I. was 14 years old.

On July 30, 2019, Kempter and C.I. began forming a plan in which Kempter would pick up C.I. in Lincoln, Nebraska, to help her run away. According to C.I., on that date Kempter's messages also became "more sexual." In messages sent July 30 and 31, Kempter asked C.I. about her interest in sex, bondage, and pornography, and expressed his desire to engage in sexual activity with her. He also asked C.I. to send him selfies. On August 1, 2019, Kempter suggested they speak over the phone to discuss logistics of him helping C.I. run away so that their conversation would not be in writing, and he told C.I. to delete her call history after they spoke. Ultimately, they arranged for Kempter to meet C.I. outside her parents’ house in Lincoln and to take C.I. to his home in Highlands Ranch, Colorado.

On August 2, 2019, Kempter drove to C.I.’s house, and she got into his car. Kempter lowered the passenger seat and covered C.I. with a coat so she was less visible. During the drive, Kempter touched C.I.’s breasts and legs, and talked about his sexual interest in her. Kempter stopped at a Walmart in Lexington, Nebraska, about two and half hours from Lincoln, where he purchased different clothes for C.I. to wear and a blanket to keep her covered. After the Walmart stop, Kempter's touching became more forceful. At one point, he pulled the car over, got on top of C.I., and put his hands on her neck. During the trip, Kempter told C.I. what to say if anyone found them together and, at some point, he gave C.I. his phone to use to delete her Reddit account. Kempter asked her to delete Tumblr too, but she could not do so without her phone, which she left at home in Lincoln.

Meanwhile, C.I.’s parents discovered she had left home without her cell phone and contacted the Lincoln Police Department (LPD). They provided C.I.’s cell phone and a phone bill, which showed a call to a number from Denver, Colorado. With this information and some additional investigation, the police were able to find Kempter's address, estimate the route Kempter would be driving, and then use cell phone tower pings to track his car. LPD contacted the Douglas County Sheriff's Office in Colorado, and when Kempter and C.I. arrived at Kempter's house in Highlands Ranch, officers were waiting for them. Kempter was taken into custody. Officers asked how old the girl in the car was, and Kempter told them she was 14. C.I. was placed in a police car, where video footage recorded her expressing frustration that they had been caught. The following day, a forensic nurse examined C.I. and documented swelling on the front of C.I.’s neck and abrasions and bruising around her breasts.

On August 21, 2019, Kempter was charged in a two-count indictment with attempted enticement of a minor, in violation of 18 U.S.C. § 2422(b), and interstate travel with intent to engage in illicit sexual conduct, in violation of 18 U.S.C. § 2423(b). Kempter pleaded not guilty, and his case proceeded to trial. The defense made a motion for acquittal under Federal Rule of Criminal Procedure 29 at the close of the government's case and after the defense rested. The district court¹ denied the motions, and, on September 2, 2020, the jury found Kempter guilty on both charges.

At sentencing, Kempter objected to sentencing enhancements proposed in the Presentence Investigation Report (PSR) for undue influence of a minor and obstruction of justice. After hearing testimony and argument from both parties, the district court overruled the objections and calculated a total offense level of 36 and a criminal history category of I, resulting in a United States Sentencing Guidelines range of 188 to 235 months of imprisonment and a supervised release range of five years to life. The district court imposed a sentence of concurrent terms of 228 months of imprisonment and 12 years of supervised release on each count, and ordered Kempter to pay $13,895.36 in restitution to C.I. and her family. Kempter timely appealed.

II.

Kempter challenges the sufficiency of the evidence on both counts of conviction. The court reviews "the sufficiency of the evidence de novo, viewing evidence in the light most favorable to the jury's verdict, resolving conflicts in the government's favor, and accepting all reasonable inferences that support the verdict." United States v. King, 898 F.3d 797, 808 (8th Cir. 2018) (quoting United States v. Tillman, 765 F.3d 831, 833 (8th Cir. 2014) ). A verdict will be overturned "only if no reasonable jury could have found the defendant guilty beyond a reasonable doubt." Id.

To convict a defendant of inducing a child to engage in criminal sexual activity in violation of 18 U.S.C. § 2422(b), as charged in Count 1, the government must prove that the defendant:

(1) used a facility of interstate commerce, such as the internet or telephone system; (2) knowingly used the facility of interstate commerce with intent to persuade or entice a person to engage in illegal sexual activity; and (3) believed that the person he sought to persuade or entice was under the age of eighteen.

United States v. Shinn, 681 F.3d 924, 931 (8th Cir. 2012) (quoting United States v. Young, 613 F.3d 735, 742 (8th Cir. 2010) ). A conviction based on attempt requires proof that the defendant intended to commit the predicate offense and conduct that constitutes a substantial step towards the crime's commission. Id. As to Count 2, "[t]o convict under 18 U.S.C. § 2423(b), the government must prove that the defendant traveled in interstate commerce with the intent to engage in illicit sexual conduct." United States v. Willins, 992 F.3d 723, 726 (8th Cir. 2021).

It is undisputed that Kempter and C.I. communicated over the internet and that Kempter believed C.I. was under the age of 18. Kempter argues, however, that the evidence was insufficient to show that he used the internet to entice C.I. to engage in illegal sexual activity. He insists their chats were about hypothetical sexual conduct only and show his sole purpose in communicating with C.I. and traveling from Colorado to Nebraska was to help her run away from home.

There was abundant evidence from which the jury could conclude that Kempter intended to "persuade or entice" C.I. to engage in "illegal sexual activity." Kempter began by telling C.I. he could help her run away but soon turned the conversation to sexual topics, both expressing his own sexual desires and asking C.I. about her sexual interests. The two also discussed C.I.’s reasons for wanting to leave home, and Kempter regularly assured her that he wanted to help. But viewing the evidence in the light most favorable to the verdict, the entire string of chats reflected an ongoing effort to persuade C.I. to trust him and, in turn, engage in illegal sexual activity. Likewise, the jury heard sufficient evidence from which it could infer that Kempter traveled between states "with the intent to engage in illicit sexual conduct." Contrary to Kempter's assertions, the record includes numerous statements of his intent to engage in sexual conduct with C.I. after he picked her up in Lincoln, as well as evidence that Kempter acted on those intentions by touching C.I. during the drive to Highlands Ranch.

III.

Kempter also challenges his sentence. We review the district court's application of the Guidelines de novo. United States v. Waller, 689 F.3d 947, 957 (8th Cir. 2012) (per curiam). At sentencing, the district court may rely on facts proved by a preponderance of the evidence, and we review such factual findings for clear error. United States v. Anderson, 926 F.3d 954, 957 (8th Cir. 2019). We review a challenge to the substantive reasonableness of a sentence "under a ‘deferential abuse-of-discretion standard.’ " United States v. Manning, 738 F.3d 937, 947 (8th Cir. 2014) (quoting United States v. Beasley, 688 F.3d 523, 535 (8th Cir. 2012) ). A district court must consider all sentencing factors in 18 U.S.C. § 3553(a), but retains "wide latitude" in how it weighs the factors, United States v. Johnson, 916 F.3d 701, 703 (8th Cir. 2019), and need not "categorically rehearse each of the section 3553(a) factors on the record ... as long as it is clear that they were considered," United States v. Dieken, 432 F.3d 906, 909 (8th Cir. 2006).

A.

Kempter first contests the application of USSG § 2G1.3(b)(2)(B), a two-level enhancement for "unduly influenc[ing] a minor to engage in prohibited sexual conduct." The application notes for this enhancement instruct the court to "closely consider the facts of the case to determine...