## 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

____________ 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Submitted: October 19, 2020 Filed: October 29, 2020 [Unpublished]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 court 1 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.- 2

- 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 viol ence. ” 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 p enetration 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.- 3

- 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 significa nt 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 ad visory 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, men tal 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
Vo gelpohl’ 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

comme nts 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 t hose 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 dis cretion in imposing a within -guidelines

sentence. See United States v. Ruelas

- Mendez , 556 F.3d 655, 657 (8th Cir. 2009)- 4

- (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 context specific 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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