United States Court of Appeals

For the Eighth Circuit

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No. 18-3666

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Steven Shane Horton

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court

for the Southern District of Iowa - Council Bluffs

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 Submitted: October 14, 2019

Filed: November 13, 2019

[Unpublished]

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Before SMITH, Chief Judge, GRUENDER and BENTON, Circuit Judges. 

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PER CURIAM.
Steven Shane Horton pled guilty to access or attempt to access child

pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). The district court1

sentenced him to 84 months’ imprisonment. He appeals. Having jurisdiction under

28 U.S.C. § 1291, this court affirms.

Horton argues hissentence should be reversed because the government did not

timely submit its objections to the presentence investigation report (“PSR”) or

sentencing exhibits. This courtreviewsthe decision to allow untimely objections and

exhibits for abuse of discretion. See United States v. Sheridan, 859 F.3d 579, 583

(8th Cir. 2017) (noting that “the Rules of Evidence expressly do not apply to

sentencing proceedings” and when “a proper objection is made” this court reviews

for abuse of discretion) (cleaned up); United States v. Jones, 70 F.3d 1009, 1010 (8th

Cir. 1995) (“[T]he district court had the discretion to consider Jones’s untimely

objection if he satisfied Federal Rule of Criminal Procedure 32(b)(6)(D).”). 

The deadline to submit objections to the PSR was September 18th. The

government submitted its objections September 25th, over two months before

sentencing. The deadline to submitsentencingmemoranda and exhibits was five days

before sentencing. The government filed its memorandum and exhibits two days

before sentencing. The government did not timely submit its objections or exhibits. 

However, the district court did not abuse its discretion in overruling the objections

to their timeliness. Horton had sufficient time to review the government’s objections

and exhibits. See Sheridan, 859 F.3d at 583 (holding that a district court may rely on

evidence “without regard to its admissibility under the rules of evidence applicable

at trial, so long as that evidence possesses sufficient indicia of reliability to support

its probable accuracy”) (internal quotation marks omitted); United States v. Leach,

491 F.3d 858, 862 (8th Cir. 2007) (“The reason for the fourteen-day filing

1The Honorable Stephanie M. Rose, United States District Judge for the

Southern District of Iowa.

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requirement” of Fed. R. Crim. P. 32(f) “is so that the objections can be addressed

and investigated prior to the sentencing hearing.”) (cleaned up).

Horton challenges the five-level sentencing enhancement for accessing more

than 600 images of child pornography. This court “review[s] de novo whether the

district court correctly interpreted and applied the sentencing guidelines” and “the

court’sfactual findings are reviewed for clear error.” United States v. Koch, 625 F.3d

470, 480 (8th Cir. 2010). Horton argues the evidence was insufficient to support the

finding that he accessed more than 600 images because clicking a link to child

pornography does not mean he “actually accessed or attempted to access that many

images.” This argument is without merit. There is no requirement that the court find

he “viewed specific images in order to count them.” Id. See United States v. Huyck,

849 F.3d 432, 439 (8th Cir. 2017) (holding that the defendant “did not simply and

accidentally navigate” to child pornography “for a few meaningless minutes” but

rather “accessed [it] after taking a number of intermediate steps that indicated his

knowledge that [the site] trafficked in child pornography”). The evidence that he

clicked on links containing more than 600 images is sufficient to meet the

requirements of the sentencing enhancement. See United States v. Nissen, 666 F.3d

486, 491 (8th Cir. 2012) (“Indeed, a court is permitted to rely on circumstantial

evidence that demonstrates knowing possession of a certain number of images when

deciding whether USSG § 2G2.2(b)(7)(D) applies.”). The district court did not

clearly err in finding Horton accessed more than 600 images.

Horton asserts the district court did not properly weigh the sentencing factors,

specifically his age, “low risk of recidivism,” medical issues, and employment, in

sentencing him. This court reviews the substantive reasonableness of a sentence for

an abuse of discretion. See United States v. Lasley, 832 F.3d 910, 913 (8th Cir.

2016). The district court stated that it “considered all of the factors under 3553(a),”

including his age, “letters of support from your friends and family,” and his

employment. It also discussed his family life, expressing its concern that there were

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“three boys in your life who you are not biologically related to who you sought out

and brought into your home who are all of the same age and it’s that same age that is

repeated over and over again in your message threads and your child pornography

images.” Finally, the court noted that the type of pornography Horton viewed was

“some of the most horrific stuff I’ve seen.” The district court did not abuse its

discretion in imposing a within-guidelines sentence.

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The judgment is affirmed.

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