1

The Honorable Warren K. Urbom, United States District Judge for the District

of Nebraska.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-3403

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United States, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Nebraska.

Bryan Dodds, *

*

Appellant. *

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Submitted: May 13, 2008

Filed: July 3, 2008

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Before RILEY, BOWMAN, and HANSEN, Circuit Judges.

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BOWMAN, Circuit Judge.

Bryan Dodds appeals from the thirty-month prison sentence imposed by the

District Court1

 after he pleaded guilty to possessing child pornography, see 18 U.S.C.

§ 2252(a)(4)(B), and agreed to criminal forfeiture, see id. § 2253. Dodds argues (1)

that the sentence was unreasonable because the District Court failed to adequately

consider relevant sentencing factors and (2) that his due process rights were violated

because the sentence was imposed after the government presented an inaccurate

picture of relevant conduct. We affirm.
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Dodds came to the attention of law enforcement personnel during an

investigation of a website that offered subscribers access to images and videos of child

pornography. The investigation revealed that on February 13, 2006, Dodds used his

credit card to subscribe to the website. He canceled his membership and access to the

website four days later. On August 17, 2006, police executed a search warrant and

seized Dodds's computer. Approximately forty images involving the lascivious

exhibition of the genital areas of minor females were found on the computer. Dodds

was charged with possession of child pornography and pleaded guilty on May 16,

2007.

At a sentencing hearing held on October 10, 2007, the District Court calculated

Dodds's sentencing guidelines range as thirty to thirty-seven months. Dodds moved

the court to depart or vary from the guidelines range based on Dodds's unique "history

and characteristics." Sentencing Tr. at 10. After hearing extensive argument on the

motion, the court denied it and sentenced Dodds to thirty months' imprisonment.

Dodds's first argument on appeal is that the District Court abused its discretion

when it imposed a sentence at the bottom of the undisputed advisory guidelines range.

Specifically, Dodds asserts that the District Court erred in refusing to vary from the

guidelines range based on "the mitigating historical and individual characteristics

relevant to Dodds." Br. of Appellant at 11. In support of his argument, Dodds notes

that he expressed genuine remorse for his conduct, his therapist opined that his risk

of recidivism is low and that incarceration could be counter-therapeutic, he earned

high grades in college courses during the prosecution of this case, he has a stable

relationship with his wife and the support of family and friends, his past criminal

history involved only minor traffic infractions, and a defendant in a case with

remarkably similar facts was sentenced to twenty-four months' imprisonment. Dodds

argues that the District Court did not adequately consider these factors, which should

have been given significant weight and resulted in a variance. Dodds complains that
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the court's alleged failure to consider these factors resulted in a sentence that is not

reasonable.

We review the reasonableness of a sentence for abuse of discretion, considering

the factors set forth in 18 U.S.C. § 3553(a). United States v. Sanchez, 508 F.3d 456,

459 (8th Cir. 2007). "A sentencing court abuses its discretion if it 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." Id. at 459–60. We

apply a presumption of reasonableness to a sentence within the advisory guidelines

range, and the burden is on Dodds to prove that his within-range sentence is

unreasonable. See United States v. Otterson, 506 F.3d 1098, 1100 (8th Cir. 2007),

cert. denied, ___ S. Ct. ___, 76 U.S.L.W. 3609 (U.S. May 12, 2008) (No. 07-10340).

Our review of the transcript of the sentencing hearing convinces us that the

District Court carefully applied the § 3553(a) factors in arriving at Dodds's sentence.

While Dodds "presents many factors showing that a different, lesser sentence would

have been reasonable, he has failed to demonstrate that the sentence actually imposed

was unreasonable." Id. Rather than "blind[ly] adher[ing] to the guidelines," as Dodds

represents, Br. of Appellant at 16, the District Court recognized Dodds's arguments

for a variance from the guidelines range and considered the § 3553(a) factors.

Initially, we note that the District Court both identified its duty to consider the

guidelines and acknowledged their advisory nature. See Sentencing Tr. at 36 ("So I

don't back away from the guidelines, nor do I rigidly grasp them."). After calculating

the guidelines sentencing range, see § 3553(a)(4)(A), the District Court went on to

consider the other § 3553(a) factors to "make an individualized assessment based on

the facts presented." Gall v. United States, 128 S. Ct. 586, 597 (2007). 

First, addressing the need to avoid unwarranted sentencing disparities in similar

cases, see 18 U.S.C. § 3553(a)(6), the court noted that the facts in every case are
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Dodds argues in his reply brief that the District Court misconstrued the

evidence as saying that Dodds had been using child pornography (as opposed to adult

pornography) for a ten-year period. At one point during the sentencing hearing, the

court stated that Dodds "had been doing it since he was 18 years old which . . . was

about nine or ten years." Sentencing Tr. at 33 (emphasis added). Although the court

did not specify whether "it" referred to child pornography or adult pornography, the

court's statements surrounding this reference provide context and make clear that the

court recognized that Dodds had used child pornography for several years and adult

pornography for about ten years. We are convinced that the court had an accurate

understanding of the facts underlying this case. It was not erroneous for the court to

consider the complete history and characteristics of Dodds in determining a reasonable

sentence. See 18 U.S.C. § 3553(a)(1).

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"somewhat different from every other set of facts" and said that "the best I can do is

look at the information I have in front of me" and try to impose a sentence similar to

sentences imposed in other similar cases "knowing that all are different." Sentencing

Tr. at 30. The court then discussed the specific "nature and circumstances" of Dodds's

offense and the "history and characteristics" of Dodds. 18 U.S.C. § 3553(a)(1). The

court found that Dodds's viewing of child pornography on the date stated in the

indictment "was not a singular event." Sentencing Tr. at 31. Rather, the evidence

indicated that Dodds had paid for membership to child pornography websites on a

number of occasions over several years. Dodds also had informed his psychologist

that he had a habit of compulsive pornography use and had used pornography for

approximately the past ten years.2

 Dodds did not begin therapy for his use of child

pornography until after he was charged in this case. The District Court next

considered the risk that Dodds would commit a similar crime in the future. See 18

U.S.C. § 3553(a)(2)(B) & (C). The court stated that while Dodds's psychologist

opined that Dodds had made progress in therapy and has a low risk of recidivism,

"That doesn't eliminate risk. It means there is some risk but low in nature."

Sentencing Tr. at 33–34. The court again recognized that Dodds had "yield[ed] to his

pornographic desires . . . a good many times" in the past. Id. at 34. The District Court

also considered Dodds's need for treatment. See 18 U.S.C. § 3553(a)(2)(D). The
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court found that Dodds needed psychiatric or psychological treatment and he would

be able to get that treatment while incarcerated. The court further found that it was

necessary for Dodds to get such treatment so that the public might be protected from

additional crimes by Dodds. See id. § 3553(a)(2)(C). Finally, the District Court

considered the need for the sentence to promote respect for the law and provide just

punishment for the offense. See id. § 3553(a)(2)(A). The court found that a sentence

of probation would not be reasonable and that a sentence of thirty months'

imprisonment was necessary to reflect that "yielding to possessing pornographic

material of children" was "serious business" because of the effect on the children

involved. Sentencing Tr. at 36. 

The District Court's explanation for Dodds's sentence was rational and

exceptionally thorough. Dodds's assertion that the District Court blindly applied the

sentencing guidelines is belied by the record; the court considered all the relevant

factors and gave them appropriate weight. Although the District Court did not

comment on every reason adduced by Dodds for a lower sentence, it was not obliged

to do so. See United States v. Fadl, 498 F.3d 862, 868 n.4 (8th Cir. 2007), cert.

denied, 128 S. Ct. 1318 (2008). Dodds's sentence within the guidelines range is not

unreasonable.

Dodds's second argument on appeal is that the government made inaccurate

statements at the sentencing hearing about Dodds's relevant conduct and "[t]o the

extent that the court relied on those statements, a procedural due process flaw was

injected into the sentencing process." Br. of Appellant at 19. Dodds contends that the

government informed the District Court that in addition to the images making up the

charged conduct, images of children engaged in sexual activity were found on the

"unsaved" portion of Dodds's computer hard drive. Dodds asserts that this

representation is inconsistent with the information in the presentence report and with

the government's earlier comments at the change of plea hearing that "the images that

were involved in this case all involved lascivious exhibition of the genital area that did
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not involve other definitions of child pornography." Change of Plea Hearing Tr. at

18. 

Assuming, without deciding, that the government's statements about the

additional images were inaccurate, we find absolutely no indication that the District

Court relied on those statements in sentencing Dodds. The government made the

reference to images of children engaged in sexual activity while comparing Dodds's

case and another case in which the defendant received a below-guidelines sentence.

Dodds's attorney, however, stated that the two cases were similar because neither

involved images of children engaging in sexual behavior. Then, in further argument

for a variance from the guidelines range, Dodds's attorney informed the court that with

the assistance of the government, he had viewed the images on Dodds's computer hard

drive and none of the images involved depictions of sexual activity. The District

Court neither asked the attorneys to clarify what type of images were on Dodds's hard

drive nor gave any indication that the court was considering this uncharged conduct

in determining a reasonable sentence. Indeed, in the court's consideration of the

nature and circumstances of the offense, the court simply stated that investigators

"discovered images of a lascivious nature" on Dodds's computer. Sentencing Tr. at

32. The District Court made no reference at any point during sentencing to the alleged

images depicting sexual activity. Dodds's due process argument is unsupported and

therefore fails.

We affirm the judgment of the District Court. 

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