Submitted: October 21, 2016
from United States District Court for the District of
Minnesota - St. Paul
RILEY, Chief Judge, WOLLMAN and BENTON, Circuit Judges.
Bevins pled guilty to production of child pornography in
violation of 18 U.S.C. § 2251(a) and (e), receipt of
child pornography in violation of 18 U.S.C. § 2252(a)(2)
and (b)(1), and possession of child pornography in violation
of 18 U.S.C. §§ 1151, 2252(a)(4)(A), and
2252(b)(2). The district court sentenced Bevins to 300 months in
prison after varying downward from Bevins's advisory
Guidelines range of 720 months. On appeal, Bevins contends
the district court procedurally erred by improperly
calculating his Guidelines range and failing adequately to
explain his 300-month sentence at the sentencing hearing.
Bevins also asserts his sentence is substantively
unreasonable. We do not find merit in any of Bevins's
challenges. Therefore, we affirm his sentence. See
28 U.S.C. § 1291 (appellate jurisdiction).
April 2013, law enforcement agents discovered a host computer
they believed contained child pornography files. The
computer's IP address was tracked to a residence in
northwest Minnesota where Bevins, then age 37, lived with his
mother and her husband. In January 2014, officers executed a
search warrant on the property and seized four computer
towers, an S.D. memory card, a USB drive, a cell phone, and
73 CDs that belonged to Bevins. The memory card contained
five videos and seven images of Bevins engaged in sexual acts
with known minors, including nine-year-old M.B., a daughter
of Bevins's cousin. Bevins was arrested and confessed to
having a six-month "relationship" with M.B. "a
couple years ago, " engaging in sexual conduct with
M.B., and recording M.B. engaged in sexual conduct with him
on multiple occasions. Officers later found an additional 60
images and 269 videos of child pornography, which Bevins
admitted he knowingly downloaded from the internet.
government filed a superseding indictment in April 2015,
charging Bevins with nine counts: counts 1 and 2 for
production of child pornography, see 18 U.S.C.
§ 2251(a), (e); count 3 for attempted production of
child pornography, see id.; counts 4 through 8 for
receipt of child pornography, see id. §
2252(a)(2), (b)(1); and count 9 for possession of child
pornography, see id. §§ 1151,
2252(a)(4)(A), (b)(2). Bevins pled guilty to counts 2
(production), 5 (receipt), and 9 (possession), in exchange
for the government dismissing the remaining six counts. In
the plea agreement, Bevins further admitted he "used and
attempted to use the same known victim to engage in sexually
explicit conduct for the purpose of producing a visual
depiction of such conduct on two additional occasions."
The plea agreement made clear this "[would] be
considered relevant conduct for sentencing purposes."
presentence investigation report (PSR) assessed Bevins's
conduct and the plea agreement under the advisory United
States Sentencing Guidelines (Guidelines or U.S.S.G.), and
recommended a prison sentence of 720 months. Bevins objected
to several enhancements and adjustments applied in the PSR.
Specifically, Bevins disputed the five levels added for
patterned behavior, see U.S.S.G. § 2G2.2(b)(5),
the five levels added for Bevins being a repeat and dangerous
sex offender, see id. § 4B1.5(b)(1), the four
levels added for sadistic or masochistic behavior, see
id. § 2G2.1(b)(4), and the three levels added as a
result of the PSR not grouping the production and attempted
production counts, see id. § 3D1.4. Bevins also
asked the district court to vary downward given
"[i]ndividualize[d] consideration[s], " and because
"the child pornography guidelines are essentially
unworkable" and "without empirical basis."
Bevins suggested a 180-month sentence-the statutory minimum
if all sentences ran concurrently-would be "more than
sufficient." See 18 U.S.C. §§
2251(e), 2252(b), 3553(a). While the government agreed a
downward variance was appropriate, it advocated for a
below-Guidelines sentence of 360 months.
sentencing hearing, the district court reported it had
reviewed the PSR and the parties' position papers
regarding Bevins's objections and the sentencing factors.
After listening to the parties' oral arguments, the
district court overruled all objections to the PSR and
sentenced Bevins as follows:
Well, taking into account the 3553(a) factors, it's my
judgment that a total sentence in this case, and I'll
break it down, of 25 years in prison meets the objectives of
3553(a). And that will be a sentence of 15 years on Count 2,
5 years on Count 5, 5 years on Count 9, all to run
consecutively for a total of a 25-year [300-month] sentence.
appeal, Bevins challenges his Guidelines range, the adequacy
of the district court's explanation regarding the §
3553(a) factors, and the substantive reasonableness of his
reviewing Bevins's sentence, we "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 § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence."
Gall v. United States, 552 U.S. 38, 51 (2007). If
the district court's sentencing decision is free of
procedural error, we "then ...