FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 06-10417 Plaintiff-Appellee,

D.C. No.

v.  CR-05-00553-WBS

JAMES R. GARNER,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of California

William B. Shubb, Chief District Judge, Presiding

Argued and Submitted

May 15, 2007—San Francisco, California

Filed June 18, 2007

Before: Betty B. Fletcher, Eugene E. Siler, Jr.,* and

Michael Daly Hawkins, Circuit Judges.

Opinion by Judge Hawkins

*The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge

for the Sixth Circuit, sitting by designation. 

7209
COUNSEL

Caro Marks, Assistant Federal Defender, Sacramento, California, for the appellant. 

Camil A. Skipper, Assistant U.S. Attorney, Sacramento, California, for the appellee. 

UNITED STATES v. GARNER 7211
OPINION

HAWKINS, Circuit Judge: 

This appeal tests the temporal and relational limits of prior

conduct as a sentencing enhancement. In it, James Garner

(“Garner”), sentenced to 262 months following his guilty plea

conviction for two counts of attempted receipt of visual depictions of a minor engaged in sexually explicit conduct and six

counts of distribution of visual depictions of a minor engaged

in sexually explicit conduct, all in violation of 18 U.S.C.

§ 2252(a)(2), contends the district court erred by using thirtyfive-year-old conduct to enhance his sentence and that his

resulting sentence is unreasonable. We affirm.

FACTS AND PROCEDURAL HISTORY

Garner was first identified by federal authorities in 2002

when he responded to an internet advertisement placed by an

undercover postal inspector, promising to deliver videos of

young schoolgirls having sex. Garner sent the inspector two

emails, indicating his preference for videos with very young

children, seven to twelve years old, with their parents. Garner

ordered one videotape, described as a video of a father with

three girls aged eight, nine, and fourteen, and one ten-year-old

boy. Garner also inquired if the undercover inspector had any

tapes of a young boy (five to twelve years old) with his

mother, and indicated he would like to order one of those as

well. Garner sent $40 to the inspector with his home address,

and also a follow-up letter inquiring about the package. The

package was never sent. 

In 2005, another postal inspector placed an advertisement

on the Internet describing his collection of tapes of young

girls having sex. Garner responded to this advertisement as

well, indicating he preferred children from five to twelve

years old, especially girls with parents involved. After

exchanging some emails with the undercover inspector, he

7212 UNITED STATES v. GARNER
ordered three videos, sending the inspector $45 along with a

letter identifying the videos he wanted and providing the

address of a friend for shipment. 

In connection with a separate investigation by the Walnut

Creek Police Department, U.S. Postal Inspectors executed a

search warrant at Garner’s residence in December 2005. Garner’s computer contained numerous image files containing

child pornography and hundreds of instant message chats with

others about child pornography. In some instances, images

had been transferred during the instant messages. 

Garner waived his Miranda rights and admitted he had

sought to purchase videotapes in 2002 and 2005, distributed

and received child pornography over the Internet, and sexually molested at least two of his children or stepchildren when

they were minors. He denied having sex with other minors

and indicated that statements he had made in emails suggesting he had done so were merely fantasies. 

The presentence report recommended a five-level increase

in offense level because Garner had engaged in a “pattern of

activity involving the sexual abuse or exploitation of a

minor.” U.S.S.G. § 2G2.2(b)(5). Garner objected that the sexual abuse of his daughter and stepdaughter were too remote

in time to be considered without violating due process. The

district court disagreed and found by clear and convincing

evidence that Garner had sexually abused his children and

that the Guidelines permitted consideration of this conduct

even though it had occurred some time ago. 

Pointing to his age, health and lack of a prior record, Garner argued for a sentence of eleven to fifteen years. The government pointed to Garner’s recent travel in northern

California to meet other adults with the intent of sexually

abusing children and Garner’s recent inquiries to his daughter

about the sex life of his minor granddaughter. The government argued that a sentence at the bottom of the range was

UNITED STATES v. GARNER 7213
necessary to protect the public and to reflect the seriousness

of the offense.1

Noting that Garner’s history and characteristics were a

major consideration, including his internet correspondence

and his recent “perverted conversations” regarding his granddaughter with his daughter, the court sentenced Garner to 262

months. The court stated the sentence would reflect the seriousness of the crime, provide just punishment and protect the

public from future crimes, noting that, if Garner were not

imprisoned, he “would pose a danger to other people’s children.” 

STANDARD OF REVIEW

This court reviews “the district court’s interpretation of the

Sentencing Guidelines de novo, the district court’s application

of the Sentencing Guidelines to the facts of the case for abuse

of discretion, and the district court’s factual findings for clear

error.” United States v. Kimbrew, 406 F.3d 1149, 1151 (9th

Cir. 2005). This court reviews the ultimate post-Booker sentence imposed for “reasonableness.” United States v. ReinaRodriguez, 468 F.3d 1147, 1158 (9th Cir. 2006). 

DISCUSSION

I. “Pattern of Activity” Enhancement

[1] Garner argues that the district court erred by applying

a five-level enhancement for “pattern of activity,” because the

prior conduct of sexually abusing his own children occurred

at least thirty-five years earlier. Section 2G2.2(b)(5) of the

Guidelines permits a five-level increase in offense level “if

the defendant engaged in a pattern of activity involving the

sexual abuse or exploitation of a minor.” The Commentary to

this Guideline defines “pattern of activity” as “any combina1The sentencing range was 262 to 327 months. 

7214 UNITED STATES v. GARNER
tion of two or more separate instances of the sexual abuse or

sexual exploitation of a minor by the defendant, whether or

not the abuse or exploitation (A) occurred during the course

of the offense; (B) involved the same minor; or (C) resulted

in a conviction for such conduct.” U.S.S.G. § 2G2.2, cmt. n.1.

[2] Garner does not contest the district court’s finding that

he had previously engaged in sexual abuse of a minor; rather,

he argues only that the conduct is too remote in time to be

considered. We have previously held that the application note

to § 2G2.2 makes clear that the sentencing court may properly

consider “expanded relevant conduct,” that is, conduct that

did not occur during or in connection with the offense of conviction. United States v. Williamson, 439 F.3d 1125, 1139-40

(9th Cir. 2006); see also United States v. Anderton, 136 F.3d

747, 751 (11th Cir. 1998); United States v. Ashley, 342 F.3d

850, 852 (8th Cir. 2003). In Williamson, however, we did not

consider whether there is any temporal restriction on the use

of such prior conduct. 

[3] The plain language of the Commentary to § 2G2.2 eliminates the need for any temporal or factual nexus between the

offense of conviction and any prior act of sexual abuse or

exploitation; the provision obviously intends to cast a wide

net to draw in any conceivable history of sexual abuse or

exploitation of children. And indeed, in applying this section,

other circuits have affirmed the enhancement even when the

prior acts were quite temporally remote. United States v.

Gawthrop, 310 F.3d 405, 413-14 (6th Cir. 2002) (eleven years

earlier); United States v. Woodward, 277 F.3d 87, 89-91 (1st

Cir. 2002) (twenty to twenty-three years earlier); United

States v. Lovaas, 241 F.3d 900, 901 (7th Cir. 2001) (twentysix years earlier). 

Recognizing the broad sweep of this provision, Garner

argues that to expand relevant conduct to include thirty-fiveyear-old actions violates due process. Substantive due process, however, requires only that a sentencing scheme be

UNITED STATES v. GARNER 7215
rational and not based on “arbitrary distinction.” Chapman v.

United States, 500 U.S. 453, 465 (1991). Garner does not

explain how the use of older but admittedly relevant conduct

is “arbitrary” or “irrational.” The courts have, for some time,

recognized that such prior conduct demonstrates an increased

danger of recidivism. See Parke v. Raley, 506 U.S. 20, 27

(1992) (recidivism statutes repeatedly upheld against due process and other challenges); United States v. Bredy, 209 F.3d

1193, 1197-98 (10th Cir. 2000) (eighteen-year-old and

twenty-seven-year-old prior robbery convictions used to support three-strikes conviction not arbitrary and did not violate

due process). 

[4] Moreover, the particularly high danger of recidivism of

sex offenders is well-known and has been used to support various other laws, such as sex-offender registration requirements. See Smith v. Doe, 538 U.S. 84, 102-03 (2003); see also

McKune v. Lile, 536 U.S. 24, 34 (2002) (risk of sex-offender

recidivism is “frightening and high”). Thus, the Sentencing

Commission could easily have a rational basis for increasing

the sentences of defendants who have previously sexually

abused or exploited children, and then later receive, possess,

or distribute material involving the sexual exploitation of children, even if years later. We, therefore, affirm the district

court’s application of the § 2G2.2(b)(5) enhancement. 

II. Reasonableness

[5] When there is no material error in the district court’s

calculation of the Guidelines range, we consider whether the

ultimate sentence imposed by the district court was “reasonable.” Reina-Rodriguez, 468 F.3d at 1158. In making this

determination, we are guided by the sentencing factors set

forth in 18 U.S.C. § 3553(a), which include the nature and circumstances of the offense, the history and characteristics of

the defendant, the kinds of sentences available, and the range

established by the Guidelines. United States v. Nichols, 464

F.3d 1117, 1124-25 (9th Cir. 2006). 

7216 UNITED STATES v. GARNER
The district court rejected Garner’s argument that the sentence imposed was greater than necessary to meet the goals of

sentencing, given his age, poor health, and vulnerability in

prison, in light of both the seriousness of the offense and Garner’s history of sexual abuse of his own children. Tying that

history and Garner’s recent actions, including his recent perverted conversations regarding his granddaughter with his

daughter, the district court concluded it had “no reason to

think that you’re not still the same person that you were when

you committed these acts against your children.” 

[6] Garner’s sentence also reflects the seriousness of the

offense and provides just punishment. The district court was

especially concerned about protecting the public from future

crimes and believed Garner would pose a danger to other children if not in prison. The court then sentenced Garner to 262

months in prison, the low end of the Guideline range. Recognizing that this meant Garner would probably spend the rest

of his life in prison, the court urged him to do things while in

prison to try to rectify what he had done in the past. 

[7] On these facts, we cannot say that the 262-month sentence is unreasonable. As the government argues, despite his

age and health, Garner remained a threat to children. The district court was clearly aware of the probable consequences of

its sentence, yet felt this sentence was necessary to provide a

just punishment and to protect other children from Garner.

That a lesser sentence might also have been reasonable does

not make this particular sentence unreasonable. See Nichols,

464 F.3d at 1126. Reflecting the seriousness of the sexual

exploitation of children, we have previously found quite

lengthy sentences to be reasonable. See Williamson, 439 F.3d

at 1140 (statutory maximum 180-month sentence for distributing child pornography not unreasonable); see also United

States v. Stewart, 462 F.3d 960, 964 (8th Cir. 2006) (300-

month sentence for possessing and transmitting child pornography not unreasonable); United States v. Cunningham, 405

F.3d 497, 505-06 (7th Cir. 2005) (210-month sentence for

UNITED STATES v. GARNER 7217
producing child pornography not unreasonable). We are satisfied from our review of the record that the district court’s sentencing decision was reasonable in light of the policies set

forth in § 3553(a). 

AFFIRMED.

7218 UNITED STATES v. GARNER