United States Court of Appeals

For the Eighth Circuit 

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No. 19-3760 

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United States of America

 Plaintiff - Appellee

v. 

David Vogelpohl

 Defendant - Appellant

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Appeal from United States District Court 

for the Northern District of Iowa - Ft. Dodge

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Submitted: October 19, 2020

 Filed: October 29, 2020 

[Unpublished] 

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Before BENTON, SHEPHERD, and KELLY, Circuit Judges.

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PER CURIAM.

David Ralph Vogelpohl pled guilty to sexual exploitation of a child in 

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

under U.S.S.G. § 2G2.1(b)(4)(A) and denied his request for a downward variance, 

1

The Honorable C.J. Williams, United States District Judge for the Northern 

District of Iowa.
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sentencing him to 360 months in prison. He appeals. Having jurisdiction under 28 

U.S.C. § 1291, this court affirms. 

I.

Vogelpohl argues the district court erred in applying an enhancement under 

U.S.S.G. § 2G2.1(b)(4)(A) for depictions portraying sadistic or masochistic conduct. 

This court reviews the application of the sentencing guidelines de novo, and the 

district court’s factual findings review for clear error. United States v. Cannon, 703 

F.3d 407, 415 (8th Cir. 2013). 

A sentencing enhancement applies when the “offense involved material that 

portrays . . . sadistic or masochistic conduct or other depictions of violence.” 

U.S.S.G. § 2G2.1(b)(4)(A). The enhancement also “applies to material depicting 

sadistic, masochistic, or violent conduct even if those pictured were not truly 

engaging in painful activities.” Cannon, 703 F.3d at 415. 

Here, at Vogelpohl’s request, the victim sent videos and pictures of herself 

inserting her finger into her vagina and anus and a mascara applicator into her 

vagina. The district court did not err in finding this was “sadistic or masochistic 

conduct or other depictions of violence.” U.S.S.G. § 2G2.1(b)(4)(A). See United 

States v. Schnekenburger, 788 Fed. App’x 1044, 1044-45 (8th Cir. 2020) (upholding 

the enhancement for sadistic or masochistic conduct where the 15-year-old victim 

inserted “a foreign object into her vagina and anus”); United States v. Starr, 533 F.3d 

985, 1001-02 (8th Cir. 2008) (holding that self-penetration with a foreign object 

qualifies as “violence” under U.S.S.G. § 2G2.1(b)(4)); United States v. Parker, 267 

F.3d 839, 847 (8th Cir. 2001) (holding that “sexual penetration with a foreign object” 

qualifies as violence under U.S.S.G. § 2G2.1(b)(4)).

The district court did not err in applying the enhancement.
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II.

 Vogelpohl asserts the district court abused its discretion in denying his motion 

for a downward variance and sentencing him to 360 months in prison. “This court 

reviews the imposition of sentences, whether inside or outside the Guidelines range, 

under a deferential abuse-of-discretion standard.” United States v. Thigpen, 848 

F.3d 841, 847 (8th Cir. 2017) (cleaned up). A court abuses its discretion when it: 

(1) “fails to consider a relevant factor that should have received significant weight;” 

(2) “gives significant weight to an improper or irrelevant factor;” or (3) “considers 

only the appropriate factors but in weighing them commits a clear error of 

judgment.” United States v. Funke, 846 F.3d 998, 1000 (8th Cir. 2017). “Where a 

sentence imposed is within the advisory guideline range, this court typically accords 

it a presumption of reasonableness.” Id. (cleaned up). “[I]t will be the unusual case 

when [this court] reverse[s] a district court sentence—whether within, above, or 

below the applicable Guidelines range—as substantively unreasonable.” United 

States v. Feemster, 572 F.3d 455, 464 (8th Cir. 2009) (en banc).

Vogelpohl believes the district court gave insufficient weight to mitigating 

factors including his “very young” age, upbringing, mental health issues, and lack 

of criminal history. He also argues his sentence is greater than that for “an offense 

with significantly-similar found conduct and seriousness.” 

These arguments are without merit. The district court specifically discussed 

Vogelpohl’s criminal history, age, upbringing, and mental health. It also discussed 

his argument about unwarranted sentencing disparities. It noted that it had “carefully 

considered” the § 3553(a) factors “[e]ven if I don’t mention each of them in my 

comments here today.” The district court properly considered Vogelpohl’s 

arguments. See United States v. Beyers, 854 F.3d 1041, 1043 (8th Cir. 2017) 

(“[W]here the district court heard argument about specific factors, we may presume 

that the court considered those factors even if the court did not address them 

expressly.” (cleaned up)). After thoroughly considering the aggravating and 

mitigating factors, it concluded that “a sentence within the advisory guideline range 

is appropriate.” It did not abuse its discretion in imposing a within-guidelines 

sentence. See United States v. Ruelas-Mendez, 556 F.3d 655, 657 (8th Cir. 2009)
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(holding that “the court has substantial latitude to determine how much weight to 

give the various factors under § 3553(a)”).

* * * * * * * 

 

The judgment is affirmed.

KELLY, Circuit Judge, concurring.

I agree that our precedent on USSG ' 2G2.1(b)(4)(A) all but decides the first 

issue Vogelpohl raises. See supra at 2. However, I write separately to register 

concern that our case law has begun to turn what should be a fact- and contextspecific inquiry into a per se rule: any insertion of any foreign object under any set 

of circumstances is necessarily sadistic or violent, and thus subject to a four-level 

enhancement. That is not how the text of this guideline provision reads. But based 

on our precedent, I concur.

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