United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 11-1835

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

Kenneth Leon Wilcox, *

*

Appellant. *

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Submitted: December 12, 2011

Filed: January 27, 2012

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Before LOKEN, MURPHY, and SHEPHERD, Circuit Judges.

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SHEPHERD, Circuit Judge.

Kenneth Leon Wilcox pled guilty to one count of transportation of a minor

with intent to engage in criminal sexual activity, in violation of 18 U.S.C. § 2423(a),

and one count of production of child pornography, in violation of 18 U.S.C. § 2251(a)

and (e). The district court sentenced him to 480 months imprisonment. Wilcox

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appeals his sentence, arguing that it is substantively unreasonable. We affirm.

The Honorable Michael J. Davis, Chief Judge, United States District Court

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for the District of Minnesota.
I.

In 2005, Kenneth Wilcox began sexually abusing his 12-year-old daughter on

a weekly basis. The abuse continued for approximately four years. During this time,

Wilcox recorded the sexual abuse in at least five different videotapes, which depicted

the victim using various sex toys on herself, Wilcox receiving oral sex from the

victim, and Wilcox engaging in vaginal sex with the victim. During the execution of

search warrants at Wilcox’s residence and a semi-trailer used by Wilcox for storage,

law enforcement officers also recovered many topless images of the victim, along

with multiple images of child pornography containing identified minor victims. 

Wilcox was an over-the-road trucker, and he took advantage ofthe fact that the victim

was isolated with him on interstate trucking runs; much of the abuse and the

production of the child pornography occurred while Wilcox and the victim were

traveling together. The sexual abuse only came to an end in December of 2009, after

the victim informed a friend’s mother and brought her one of the videos.

In addition to the sexual abuse and the production of the videos, Wilcox had

the victim sign “contracts” detailing the sex acts she would be required to perform in

the future. These contracts instructed the victimto dress in a certain manner, required

the victim to be submissive to Wilcox, and discussed sexual acts the victim would be

forced to perform as punishment for “breach” of any of the contract terms. Several

of the contracts discussed payment for nude pictures of the victim’s friends, the

formation of a “sex house” with the victim, and a promise to allow Wilcox to teach

any potential future daughters of the victim about sex.

On June 15, 2010, a federal grand jury returned a ten-count Indictment

charging Wilcox with five counts of interstate transportation of a minor with intent

to engage in criminal sexual activity and five counts of production of child

pornography. On October 14, 2010, Wilcox pled guilty to one count of interstate

transportation of a minor with intent to engage in criminal sexual activity and one

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count of production of child pornography. In the plea agreement, Wilcox admitted

that he committed the acts charged in the other eight counts of the Indictment and

acknowledged that these acts constituted relevant conduct for the purposes of

calculating his Sentencing Guidelines range. Both parties agreed that Wilcox’s

offense level was 48, which exceeds the highest level of the Guidelines. Wilcox was

therefore treated as though he possessed an offense level of 43, which is the

maximum offense level contained in the Sentencing Table and carries an advisory

sentence of life imprisonment.

Prior to sentencing, Wilcox requested a downward variance to 240 months

imprisonment pursuant to the factors of 18 U.S.C. § 3553(a). In a written sentencing

memorandum, Wilcox argued that the variance was appropriate because he was a

first-time sex offender, had no significant criminal history, and had demonstrated

commitment to rehabilitation by seeking treatment in jail. Wilcox further claimed

that he experienced sexual abuse as a minor, presented a low risk of recidivism, and

felt genuine remorse over his actions. Finally, Wilcox argued that the Sentencing

Guidelines for production of child pornography lacked an empirical basis and did not

effectively reflect the goals of sentencing. In response, the Government argued that

the nature and circumstances of the offense were particularly heinous, that Wilcox’s

remorse and commitment to treatment developed only after his arrest, that the “sex

contracts” expressing Wilcox’s intent to teach the victim’s daughters about sex

demonstrated a desire to reoffend, and that a sentence of life imprisonment would be

consistent with sentences imposed in similar cases.

At the sentencing hearing, Wilcox again argued for a downward variance to 20

years, citing the arguments from his written sentencing memorandum. Wilcox

expressed his desire to apologize to the victim and stated that he was participating in

a self-help program. The Government restated its position that a sentence of life

imprisonment would be sufficient to comply with the purposes of sentencing. After

confirming that the appropriate Guidelines sentence waslife imprisonment, the court

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decided to vary downward, but not to the extent requested by Wilcox. Ultimately, the

court sentenced Wilcox to 480 months imprisonment on Count 1 and 360 months

imprisonment on Count 2, to be served concurrently and followed by a lifetime of

supervised release.

II.

On appeal, Wilcox challenges his sentence of 480 months imprisonment as

substantively unreasonable.

“We review the substantive reasonableness of a defendant’s sentence for abuse

of discretion.” United States v. Wisecarver, 644 F.3d 764, 774 (8th Cir.), cert.

denied, 132 S. Ct. 533 (2011). “[A]n abuse of discretion occurs where the sentencing

court fails to consider a relevant factor that should have received significant weight,

gives significant weight to an improper or irrelevant factor, or considers only the

appropriate factors but commits a clear error of judgment in weighing those factors.” 

United States v. Bryant, 606 F.3d 912, 921 (8th Cir. 2010) (quotation marks omitted).

Wilcox argues that his sentence is unreasonable because the district court failed

to give proper weight to Wilcox’s lack of meaningful criminal history, his genuine

remorse and efforts at rehabilitation, and his low risk of recidivism. In particular,

Wilcox argues that the court abused its discretion by giving little mitigating weight to

a psychological evaluation of Wilcox predicting a low likelihood of reoffense and a

published study on the reduced risk of recidivism in cases of incest. Wilcox also

contends that the court failed to consider the sexual abuse that he experienced as a

child.

In both his written memorandum and at the sentencing hearing, Wilcox

presented the arguments regarding his remorse, low risk of recidivism, minimal

criminal history, and past childhood abuse. In sentencing Wilcox, the court

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announced that it had reviewed the factors under 18 U.S.C. § 3553(a). The district

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court also stated that it had considered “everything in [Wilcox’s] file” and had

reviewed the psychological report submitted by Wilcox. “Thus, the district court was

aware of [Wilcox’s] arguments, and we therefore presume that the district court

considered and rejected them.” United States v. Johnson, 619 F.3d 910, 922 (8th Cir.

2010).

Moreover, the sentencing transcript demonstrates that the district court was

skeptical of Wilcox’s claims of remorse and placed a great deal of weight on the

monstrous nature of Wilcox’s offense:

The statement, sir, of you wishing that your daughter was here so you

can apologize . . . rings so hollow that really the Court should not

respond to it. You abused your daughter in the most despicable way

possible for a lengthy period of time, isolated her. She unfortunately is

just destroyed for the rest of her life. And the just punishment in this

matter is for you to spend practically the rest of your life in prison.

In its statement of reasons for imposing Wilcox’s sentence, the court further explained

that it relied upon its viewing of the videotapes confiscated by law enforcement and

the horrifyingly detailed “sex contracts” that Wilcox had the victim sign. Thus, the

record reveals that the district court believed that the nature and circumstances of

Wilcox’s offense deserved greater consideration under section 3553(a) than any ofthe

mitigating factors presented by Wilcox, which is a determination well within the

discretion of the district court. We have held that “[t]he district court’s choice to

assign relatively greater weight to the nature and circumstances of the offense than to

the mitigating personal characteristics of the defendant is well within the ‘wide

These factors include the defendant’s criminal history, the nature of his

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offense, and whether the sentence would provide just punishment, deter criminal

conduct, protect the public from further crimes, and provide the defendant with

needed correctional treatment. 18 U.S.C. § 3553(a)(1) and (2).

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latitude [given] to individual district court judges in weighing relevant factors.’” 

Wisecarver, 644 F.3d at 774 (quoting United States v. Foy, 617 F.3d 1029, 1037 (8th

Cir. 2010), cert. denied, 131 S. Ct. 1512 (2011)). “The district court may give some

factors less weight than a defendant prefers or more to other factors but that alone does

not justify reversal.” United States v. Anderson, 618 F.3d 873, 883 (8th Cir. 2010),

cert. denied, 131 S. Ct. 1550 (2011). After all, “[t]he sentencing judge is in the best

position to find facts and ‘judge their import under § 3553(a) in the individual case.’”

Id. (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). Under these

circumstances, we cannot find that a below-Guidelines sentence of 480 months

imprisonment is substantively unreasonable, and we therefore find no abuse of

discretion.

III.

We affirm the sentence imposed by the district court.

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