United States Court of Appeals

For the Eighth Circuit

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No. 12-4015

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Joseph Vanhorn

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the Western District of Missouri - Joplin

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 Submitted: November 22, 2013

 Filed: January 10, 2014

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Before BENTON, BEAM, and SHEPHERD, Circuit Judges.

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BENTON, Circuit Judge.

Joseph A. Vanhorn was found guilty of sexual exploitation of a minor in

violation of 18 U.S.C. § 2251(a) and 2251(e). The district court1

 sentenced him to 220

months’ imprisonment. He appeals, arguing the district court misinterpreted the word

1

The Honorable Richard E. Dorr, late a United States District Court Judge

for the Western District of Missouri.
“uses” in 18 U.S.C. § 2251(a), abused its discretion in sentencing him, and imposed

a sentence violating the Eighth Amendment. Having jurisdiction under 28 U.S.C. §

1291, this court affirms.

I.

This court reviews de novo issues of statutory construction. United States v.

Sutton, 625 F.3d 526, 528 (8th Cir. 2010), citing United States v. Barraza, 576 F.3d

798, 806 (8th Cir. 2009). Vanhorn argues that the district court gave an overly broad

meaning to the word “uses” in 18 U.S.C. § 2251(a):

Any person who employs, uses, persuades, induces, entices, or coerces

any minor to engage in . . . any sexually explicit conduct for the purpose

of producing any visual depiction of such conduct . . . shall be punished

as provided under subsection (e) . . . .

Vanhorn photographed the minor victim in sexually explicit positions. The “use”

component is “fully satisfied for the purposes of the child pornography statute if a

child is photographed in order to create pornography.” United States v. Fadl, 498

F.3d 862, 866 (8th Cir. 2007), quoting United States v. Sirois, 87 F.3d 34, 41 (2d Cir.

1996). Vanhorn claims that this interpretation of the word “uses” is superseded by the

Supreme Court’s later analysis in United States v. Williams, 553 U.S. 285, 294-95

(2008).

In Williams, the Supreme Court examined for overbreadth a related statute, 18

U.S.C. § 2252A(a)(3)(B):

Any person who . . . knowingly . . . advertises, promotes, presents,

distributes, or solicits through the mails, or using any means or facility

of interstate or foreign commerce . . . an obscene visual depiction of a

minor engaging in sexually explicit conduct.

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The Supreme Court concluded that the words “promotes” and “presents” should be

narrowly interpreted. Williams, 553 U.S. at 294-95.

Vanhorn believes that the Supreme Court would similarly limit “uses” in §

2251(a). However, a year after Williams, this court reaffirmed Fadl’s interpretation

of “uses”: “A defendant ‘uses’ a minor for purposes of § 2251(a) if he photographs

the minor engaging in sexually explicit conduct to create a visual depiction of such

conduct.” United States v. McCloud, 590 F.3d 560, 566 (8th Cir. 2009). This panel

is bound by the McCloud decision. Brock v. Astrue, 674 F.3d 1062, 1065 (8th Cir.

2012).

The district court properly interpreted the word “uses” in 18 U.S.C § 2251(a),

correctly overruling Vanhorn’s motion for a directed verdict.

II.

Vanhorn objects to the reasonableness of the 220-month sentence, alleging the

district court did not adequately and fully consider the criteria in 18 U.S.C. § 3553. 

Vanhorn does not allege a procedural error, so this court considers only the

substantive reasonableness of the sentence, under an abuse-of-discretion standard. 

See Gall v. United States, 552 U.S. 38, 51 (2007). Substantive reasonableness

depends on “the totality of the circumstances, including the extent of any variance

from the Guidelines range.” United States v. Woodard, 675 F.3d 1147, 1151 (8th Cir.

2012), quoting United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en

banc). Substantive review is “narrow and deferential; it will be the unusual case when

we reverse a district court sentence—whether within, above, or below the applicable

Guidelines range—as substantively unreasonable.” United States v. French, 719 F.3d

1002, 1009 (8th Cir. 2013), quoting United States v. Kelley, 652 F.3d 915, 918 (8th

Cir. 2011). An abuse of discretion occurs if:

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(1) a court fails to consider a relevant factor that should have received

significant weight; (2) a court gives significant weight to an improper or

irrelevant factor; or (3) a court considers only the appropriate factors but

in weighing those factors commits a clear error of judgment.

United States v. Garcia, 512 F.3d 1004, 1006 (8th Cir. 2008), quoting United States

v. Haack, 403 F.3d 997, 1004 (8th Cir. 2005). The district court “need not

specifically respond to every argument made by the defendant, or mechanically recite

each § 3553(a) factor.” French, 719 F.3d at 1007, quoting United States v. Struzik,

572 F.3d 484, 487 (8th Cir. 2009).

The district court here considered the § 3553 factors and varied downward from

the Guidelines range of 262 to 327 months, sentencing Vanhorn to 220 months. The

district court chose a below-Guidelines sentence due to Vanhorn’s advanced age and

lack of criminal history. Addressing his medical condition, the court recommended

a full physical examination and evaluation, and assignment to an institution for sexoffender treatment. Ultimately, the court did not sentence Vanhorn to the statutory

minimum because of the severity of his offense, the creation and production of child

pornography that psychologically damages the minor victim.

Because the district court considered and properly weighed the relevant factors,

the sentence is not substantively unreasonable. See United States v. Stults, 575 F.3d

834, 849 (8th Cir. 2009) (“[T]he district court adequately explained why it was

sentencing [the defendant] below the applicable Guidelines range of 188 to 235

months. Accordingly, we hold that a sentence of 144 months’ imprisonment is not

substantively unreasonable.”).

III.

Vanhorn asserts that his sentence is cruel and unusual punishment. This court

reviews Eighth Amendment challenges de novo. United States v. Capps, 716 F.3d

494, 498 (8th Cir. 2013). 

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Vanhorn’s below-Guidelines sentence is 40 months above the mandatory

minimum of 15 years. A sentence below the Guidelines range, but above the

mandatory minimum, does not violate the Eighth Amendment. Cf. United States v.

Montgomery, 701 F.3d 1218, 1224 (8th Cir. 2012) (sentence at bottom of range, but

above mandatory minimum, does not violate the Eighth Amendment). See also

United States v. McDade, 399 Fed. Appx. 520, 524-25 (11th Cir. 2010) (holding a

below-Guidelines, above-statutory-minimum, 240-month sentence for violating 18

U.S.C. § 2251(a) did not meet the threshold of gross disproportionality); United States

v. Davis, 306 Fed. Appx. 102, 104 (5th Cir. 2009) (holding a 200-month sentence for

a violation of 18 U.S.C. § 2251(a) was not “grossly disproportionate to the offense,”

though it exceeded the mandatory minimum by 20 months); United States v. Nichols,

527 Fed. Appx. 344, 349 (6th Cir. 2013) (finding a below-Guidelines, 600-month

sentence for violations of 18 U.S.C. §§ 2251 and 2252A was not grossly

disproportionate to the offense).

Vanhorn’s sentence is within the statutory range of “not less than 15 years nor

more than 30 years.” 18 U.S.C. § 2251(e). A sentence within the statutory range is

“generally not reviewable by an appellate court.” United States v. Collins, 340 F.3d

672, 679 (8th Cir. 2003), citing United States v. Richard, 872 F.2d 253, 255 (8th Cir.

1989). This court has never held a sentence within the statutory range to violate the

Eighth Amendment. United States v. Neadeau, 639 F.3d 453, 456 (8th Cir. 2011),

citing Collins, 340 F.3d at 680. This is not “the rare case in which a threshold

comparison of the crime committed and the sentence imposed leads to an inference

of gross disproportionality.” United States v. Spires, 628 F.3d 1049, 1054 (8th Cir.

2011). See also United States v. Patten, 664 F.3d 247, 252 (8th Cir. 2011) (holding

a 480-month sentence for violation of 18 U.S.C. §§ 2251(a) and 2252A did not violate

the Eighth Amendment, though the sentence was 115 months above the high end of

the Guidelines range); cf. United States v. Paton, 535 F.3d 829, 837-38 (8th Cir.

2008) (holding a life sentence under 18 U.S.C. § 2251(a) for a repeat offender did not

violate the Eighth Amendment).

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Because nothing in the record indicates that the sentence is grossly

disproportionate to his crime, Vanhorn’s sentence does not violate the Eighth

Amendment.

* * * * * * *

The judgment is affirmed.

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