United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 08-3194

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United States of America, *

*

Plaintiff - Appellee, *

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v. *

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John Shuler, *

*

Defendant - Appellant. *

___________ Appeals from the United States

District Court for the

No. 09-1482 Northern District of Iowa.

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United States of America, *

*

Plaintiff - Appellee, *

*

v. *

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Heather Fiorella, *

*

Defendant - Appellant. *

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Submitted: October 21, 2009

Filed: March 11, 2010

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Before LOKEN, Chief Judge, MURPHY and BYE, Circuit Judges.

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1

 The Honorable Linda R. Reade, Chief Judge of the United States District

Court for the Northern District of Iowa.

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LOKEN, Chief Judge.

A March 2007 warrant search of the home of John Shuler and Heather Fiorella,

and subsequent warrant searches of computer equipment seized at the home, yielded

hundreds of still and video images of child pornography. Included were dozens of

photos and one video of Fiorella’s eleven-year-old daughter, K.G., posing nude in

erotic and lascivious displays, and a videotape of Shuler and Fiorella graphically

enticing a fourteen-year-old girl, M.B., to engage in sexual activity such as performing

oral sex on Shuler. Fiorella and Shuler were charged in a superseding indictment with

conspiracy to produce, attempted production, and production of child pornography in

violation of 18 U.S.C. §§ 2251(a) and (e) and 2, and possession of child pornography

in violation of § 2252A(a)(5)(B) and (b)(2). Fiorella was also charged with violating

§ 2251(b) and (e) because one minor victim was her daughter. 

Shuler pleaded guilty to production of child pornography and conspiracy to

produce child pornography. Fiorella pleaded guilty to three counts of possession of

child pornography. The district court1

 separately sentenced Shuler to 470 months in

prison, and Fiorella to 360 months in prison. They appeal the sentences, raising

several issues. While the cases were not consolidated on appeal, we address them in

a single opinion and affirm both sentences. 

I. John Shuler’s Sentence

At sentencing, the district court determined that the base offense level for

Shuler’s production offenses was 32. See U.S.S.G. § 2G2.1(a). While not disputing

other enhancements, Shuler objected to the PSR’s recommendation of a four-level

enhancement under U.S.S.G. § 2G2.1(b)(4) because “the defendant’s relevant conduct
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involved possessing material that portrays sadistic or masochistic conduct or other

depictions of violence.” The PSR noted that some of this material was found on the

disc containing images of K.G., and near the video of M.B. Shuler argued that this

material “would not . . . be relevant conduct for John Shuler” absent further evidence

he knowingly possessed it. The government argued that there was sufficient evidence

of knowing possession because the material was found in the “sex room” of Shuler’s

basement. The government also noted that this four-level enhancement would only

raise Shuler’s total offense level by one -- from 42 to 43 -- because the highest level

under the advisory Guidelines is 43. 

The district court found that Shuler should be held responsible for the sadistic

or masochistic images, perhaps jointly with Fiorella, and determined that his total

offense level was 43, resulting in an advisory guidelines sentence of life in prison.

The court sentenced Shuler to 470 months in prison -- the statutory maximum of 360

months on each count, with 110 months of the second to run consecutive to the first.

The court also stated: 

I would note that if I erred in scoring the advisory guideline range, the

Court’s decision on the ultimate sentence of 470 months would be the

same even without the four-level increase for . . . sadistic images and

other depictions of violence after considering all of the statutory factors

at 18 U.S.C. § 3553(a). 

A. On appeal, Shuler alters his relevant conduct argument, asserting for the

first time that the district court erred in imposing the § 2G2.1(b)(4) enhancement

because the child pornography he produced -- videos and photos of K.G. and M.B. --

were not sadistic or violent images, and the possession of sadistic images produced

by others is not relevant conduct for his production offenses. As the enhancement

affected Shuler’s advisory guidelines sentence, this is an issue of procedural error

under United States v. Gall, 552 U.S. 38, 51 (2007). 
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On the merits, this appears to be an issue of first impression, raising difficult

questions of whether sadistic or masochistic materials that Shuler did not produce are

nonetheless relevant conduct to his production offense, either under U.S.S.G.

§ 1B1.3(a)(1), because they are “acts . . . that occurred during the commission of the

offense of conviction,” or under § 1B1.3(a)(2) despite the fact that § 1B1.3(a)(2)

applies only to offenses “for which § 3D1.2(d) would require grouping,” and child

pornography production offenses governed by § 2G2.1 are not grouped under

§ 3D1.2(d). We decline to consider these questions because Shuler did not make this

argument to the district court; the error, if any, is far from plain; and in any event we

can readily dispose of this issue on another ground.

At sentencing, the district court explicitly stated that “the ultimate sentence of

470 months would be the same even without the four-level increase for . . . sadistic

images and other depictions of violence.” Because the Guidelines are now advisory,

procedural errors in determining the advisory sentencing range are subject to harmless

error analysis. Therefore, we have encouraged district courts in resolving a factintensive Guidelines issue “to state whether its resolution of the issue affected its

ultimate determination of a reasonable sentence.” United States v. Vickers, 528 F.3d

1116, 1121 (8th Cir. 2008). Here, the disputed enhancement only produces a onelevel increase in the total offense level, and the sentence imposed by the district court,

470 months, falls within the advisory ranges for the two levels -- 360 months to life

for level 42, and life for level 43. Moreover, even if the sentence was not within this

overlap, Shuler was initially charged with possession of child pornography, a count

dismissed pursuant to the plea agreement, and the Guidelines expressly provide that

an upward departure may be based upon conduct “underlying a charge dismissed as

part of a plea agreement . . . that did not enter into the determination of the applicable

guideline range.” U.S.S.G. § 5K2.21. In these circumstances, the district court’s

explicit statement rendered harmless any procedural error in applying § 2G2.1(b)(4).
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B. Shuler further argues that his 470-month sentence is unreasonable because

the district court failed to give adequate consideration to his personal history,

including the fact that he had not been previously convicted of a sex crime. We

review the substantive reasonableness of a sentence for abuse of discretion. United

States v. Lazarski, 560 F.3d 731, 733 (8th Cir. 2009). “Substantive appellate review

in sentencing cases is narrow and deferential. . . . [I]t 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. Feemster, 572

F.3d 455, 464 (8th Cir. 2008) (en banc) (quotation omitted). Here, the court stated

that it had considered the statutory § 3553(a) factors, addressed Shuler’s specific

arguments for a variance, emphasized the surreptitiously produced video of victim

M.B. in describing the criminal conduct, and concluded “there is absolutely no basis

whatsoever to vary [downward] in this case.” After careful review of the sentencing

record, we conclude there was no abuse of discretion and affirm Shuler’s sentence.

II. Heather Fiorella’s Sentence

The district court determined that the total offense level for Fiorella’s three

child pornography possession offenses was 41, resulting in an advisory guidelines

sentencing range of 324-405 months in prison. The parties agreed to an adjusted

offense level of 22 under U.S.S.G. § 2G2.2. The court then applied a 4-level

enhancement for possession of sadistic or violent images, § 2G2.2(b)(4); a 5-level

enhancement for a pattern of child exploitation activity, § 2G2.2(b)(5); and a 5-level

enhancement for possession of 600 or more images, § 2G2.2(b)(7)(D). The court then

applied the cross-reference to the child pornography production guideline, § 2G2.1,

because Fiorella and Shuler induced and enticed both K.G. and M.B. “to engage in

sexually explicit conduct for the purpose of producing any visual depiction of such

conduct.” § 2G2.2(c)(1). This increased Fiorella’s adjusted offense level to 38. The

court imposed enhancements for obstruction of justice and multiple victims, denied

a downward adjustment for acceptance of responsibility, and denied Fiorella’s motion
2

The Sentencing Commission recently published a thorough chronological

review of the 22-year history of its child pornography guidelines. U.S. Sentencing

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for a downward departure or variance. The court sentenced Fiorella to three

consecutive 120-month sentences, the statutory maximum for each count. United

States v. Fiorella, 602 F. Supp. 2d 1057, 1065-76 (N.D. Iowa 2009). 

A. On appeal, Fiorella first argues that three maximum, consecutive ten year

sentences are unreasonable in a child pornography case. After rehashing the

mitigating circumstances argued at sentencing, Fiorella complains that the district

court “simply imposed the sentences that were determined” in the court’s thorough

sentencing memorandum; granted every sentence increase sought by the government;

discounted “positive attributes” of Fiorella’s prior life; and rejected “every one of her

reasonable arguments for a less punitive sentence.” Particularly given the district

court’s thorough explanation of its sentencing decisions, these contentions fall far

short of persuading us this is the “unusual case” warranting reversal because a

sentence is substantively unreasonable. Feemster, 572 F.3d at 464. 

Fiorella further argues that the child pornography guidelines warrant downward

variances because they were promulgated at the urging of Congress without the

Sentencing Commission exercising its “traditional role . . . of empirical analysis.” She

relies on published decisions of other district courts in this circuit that have granted

downward variances on this basis. See United States v. Shipley, 560 F. Supp. 2d 739

(S.D. Iowa 2008); United States v. Baird, 580 F. Supp. 2d 889 (D. Neb. 2008). This

categorical argument was appropriately made to the district court, which explicitly

distinguished these cases and rejected their reasoning. Fiorella, 602 F. Supp. 2d at

1074-75. It is not properly made to this court; our appellate role is limited to

determining the substantive reasonableness of a specific sentence where the advisory

guidelines range was determined in accordance with § 2G2.2 . See United States v.

Kiderlen, 569 F.3d 358, 368-69 (8th Cir. 2009).2
Commission, THE HISTORY OF CHILD PORNOGRAPHY GUIDELINES (Oct. 2009),

available at: http://www.ussc.gov/general/20091030_History_Child_Pornography_

Guidelines.pdf.

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B. Fiorella next argues that the district court committed procedural error by

applying the cross reference to § 2G2.1 in determining her total offense level. The

cross reference applies when the offense “involved causing, transporting, permitting,

or offering or seeking by notice or advertisement, a minor to engage in sexually

explicit conduct for the purpose of producing a visual depiction of such conduct.”

§ 2G2.2(c)(1). This provision “is to be construed broadly.” U.S.S.G. § 2G2.2

comment. (n.5).

Fiorella argues the cross reference should not apply because there was no proof

she was present when Shuler took the sexually explicit photos of her daughter, and no

proof she knew Shuler made a surreptitious video of their pornographic session with

M.B. It is undisputed that Fiorella encouraged her daughter to take nude photographs

and later uploaded them onto a computer. The district court credited her earlier

statements admitting that she participated in the photo sessions, rather than her later

assertion to the contrary. Fiorella, 602 F. Supp. 2d at 1067. The video of M.B. shows

Fiorella directing M.B. to a chair directly facing the hidden camera, encouraging M.B.

to take nude pictures of herself, discussing sexual positions with M.B., applying a gel

to her genitals and encouraging M.B. to do the same, and asking M.B. if she would

“consider giving John a blow job.” Even if Fiorella were ignorant of the hidden

camera, the tape is ample evidence Fiorella enticed M.B. to produce child

pornography. The evidence was clearly sufficient to support the district court’s

decision to apply the cross reference in § 2G2.2(c)(1). See United States v. Starr, 533

F.3d 985, 1001 (8th Cir.), cert. denied, 129 S. Ct. 746 (2008). 

C. Finally, Fiorella argues the district court committed procedural error by

imposing enhancements under § 2G2.2(b)(4) and § 2G2.2(b)(7)(D) because there was
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insufficient proof that she possessed Shuler’s collection of sadistic or violent material

and 600 or more images of child pornography. We need not consider the merits of

these contentions because any error would be harmless. Due to the cross-reference

we have now upheld, Fiorella’s advisory guidelines range was based on the child

pornography production guideline, § 2G2.1, which resulted in a higher total offense

level than the child pornography possession guideline would have produced with the

§ 2G2.2(b)(4) and § 2G2.2(b)(7)(D) enhancements.

The judgments of the district court are affirmed. 

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