1

The Honorable David M. Ebel, United States Circuit Judge for the 10th Circuit,

sitting by designation.

2

The Honorable Richard E. Webber, United States District Judge for the Eastern

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 07-3902

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* Eastern District of Missouri. 

Steven D. Kiderlen, *

*

Appellant. * 

___________

Submitted: June 9, 2008

Filed: June 22, 2009

___________

Before LOKEN, Chief Judge, EBEL,1

 and COLLOTON, Circuit Judges.

___________

COLLOTON, Circuit Judge.

On December 15, 2005, a grand jury charged Steven Kiderlen with one count

of transporting child pornography, in violation of 18 U.S.C. § 2252A(a)(1).

Kiderlen’s counsel moved to withdraw on June 26, 2006, and Kiderlen asked to

proceed pro se. The district court2

 granted the motions, but later appointed new
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counsel, after Kiderlen was transferred to an out-of-state detention facility for

psychiatric observation in September 2006. The court then held two competency

hearings in March and April 2007, and determined that Kiderlen was competent to

stand trial. In May 2007, Kiderlen’s attorney requested leave to withdraw and remain

as standby counsel, and Kiderlen again filed a motion to proceed pro se. The court

granted the motions, and Kiderlen tried his own case before a jury. The jury found

him guilty, and the district court sentenced him to 240 months’ imprisonment. On

appeal, Kiderlen argues that (1) he was not competent to stand trial, (2) he did not

knowingly and voluntarily waive his right to counsel, (3) the verdict reached by the

jury was not supported by sufficient evidence, (4) his sentence is unreasonable under

18 U.S.C. § 3553(a), and (5) his sentence violates the Eighth Amendment’s ban on

cruel and unusual punishment. We affirm.

I.

On June 1, 2004, a family services worker contacted the Lincoln County,

Missouri, sheriff’s office and advised the sheriff that a twelve year-old female, K.G.,

had saved sexually suggestive instant messages received from Kiderlen. The

messages, dated May 29, 2004, indicated that Kiderlen had engaged in sexual

encounters with three other minor females, and showed Kiderlen propositioning K.G.

for sex. When the police visited Kiderlen’s residence later that day, Kiderlen refused

to consent to a search of his residence and declined to answer questions, but he did

turn over a computer to the police. 

On June 2, 2004, the police obtained and executed a search warrant for

Kiderlen’s residence, where they found three work stations with missing central

processing units. After Kiderlen and his wife, Angela, arrived home, the police took

the couple into custody. Angela told the police that she had helped Kiderlen destroy

these computers and throw them in a ditch in a state park. Angela led police to the

park, where they recovered the computers. The damage to the machines was so
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extensive, however, that the police could not recover any data. The computer that

Kiderlen had provided to the police three days earlier was his daughter’s, and the hard

drive did not contain pornography. 

On that same day, K.G.’s mother told police that K.G. previously had received

two e-mails from Kiderlen. The first e-mail contained eight images depicting prepubescent minors engaged in various sex acts. The second e-mail contained two web

links entitled “Six Taking Shower” and “Nude Girls.” K.G.’s mother attempted to

access the web links on the second e-mail, but was unable to do so because a password

was required. Police eventually conducted a forensic examination of K.G.’s mother’s

computer, discovering both e-mails and the sexually suggestive instant messages that

K.G. received from Kiderlen. On December 15, 2005, Kiderlen was charged with

transporting child pornography, in violation of 18 U.S.C. § 2252A(a)(1). 

On June 26, 2006, Kiderlen’s appointed counsel moved to withdraw, and

Kiderlen asked to proceed pro se. The court warned Kiderlen that he would be held

to the same standards as an attorney trained in the law, and suggested that Kiderlen

accept a court-appointed standby counsel. But when Kiderlen persisted in his desire

for self-representation, the court ultimately granted the motions. The court also made

clear that it would appoint successor counsel upon Kiderlen’s request.

At a status conference in September 2006, a magistrate judge reviewed the

government’s request that Kiderlen submit to a psychiatric evaluation to determine his

competency to stand trial. The magistrate judge previously had granted a similar

request, but Kiderlen refused to submit to an evaluation by a local psychiatrist. At the

September conference, the magistrate judge again ordered a mental competency

evaluation. Due to the “bizarre nature of some of the comments and statements

[Kiderlen] made,” the magistrate also recommended that the district court appoint

counsel. The district court accepted the recommendation and appointed counsel to

represent Kiderlen at all remaining proceedings before the court.
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The psychiatrist who evaluated Kiderlen at Federal Medical Center in Butner,

North Carolina, determined that Kiderlen was competent to stand trial. Kiderlen’s

counsel objected to the psychiatrist’s report, and asked that a second evaluation be

conducted by a doctor of Kiderlen’s choosing. The government did not oppose this

request, and the court granted the motion. When Kiderlen’s chosen psychiatrist

arrived, however, Kiderlen again refused to be evaluated, leaving only one complete

psychiatric evaluation for consideration by the district court. Kiderlen’s counsel

identified this problem at the March 2007 competency hearing, and again expressed

concern, based on his personal interactions with his client, about Kiderlen’s

competency. Counsel represented that Kiderlen could not meaningfully assist in

preparing a defense, and that Kiderlen’s actions suggested that additional psychiatric

treatment was necessary before Kiderlen could stand trial. The court continued the

hearing to allow the parties to call witnesses.

At the continuation of the competency hearing on April 17, 2007, the court

heard testimony from Dr. Tanya Cunic, the only doctor able to complete a psychiatric

evaluation of Kiderlen. Dr. Cunic opined that based on four hours of formal

interaction with Kiderlen, she found him able to assist in his defense and competent

to proceed. Dr. Cunic explained that Kiderlen appeared to ascribe to the Freeman

Movement, a group of people who believe that President Franklin Roosevelt pledged

the birth certificates of United States citizens as collateral for the United States debt.

Members of the movement believe that the government is treating them as monetary

collateral instead of human beings, and that a criminal indictment listing the name of

a movement member in all capital letters is actually a suit against a fictitious

corporation rather than the named person. Dr. Cunic explained that Freemen also do

not recognize the authority of the courts. 

Despite Kiderlen’s unusual ideology, he discussed common topics with Dr.

Cunic in a coherent fashion. Dr. Cunic noted that Kiderlen was very different from

the ten other Freemen she had dealt with in the past. She observed that Kiderlen had
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learned about the movement from someone in another jail facility, and that Kiderlen

believed that subscribing to the Freeman movement was his best “defense” because

it enabled him to weigh down the government with paperwork. Dr. Cunic took

Kiderlen’s understanding of the strategic benefits of subscribing to the Freeman

Movement as evidence that Kiderlen was capable of meaningfully assisting in his

defense. Dr. Cunic also noted that Kiderlen was able to speak rationally and interact

appropriately, although at times he would choose not to do so. 

In cross-examining Dr. Cunic, defense counsel elicited evidence that Kiderlen

had expressed suicidal thoughts and superficially cut his arm with a razor on one

occasion. Dr. Cunic testified, however, that these events were not necessarily

indicative of mental illness. She later said that she felt Kiderlen understood the

Freeman Movement and was able to employ it as a defense, but that he did not

actually believe in the movement. In her written report, Dr. Cunic added that

Kiderlen’s request to proceed pro se should not be construed as evidence of mental

illness, and that if Kiderlen chose to accept representation, then he would be able

properly to assist an attorney in the defense of his case. The magistrate judge credited

Dr. Cunic’s report and testimony, and found that Kiderlen was competent to stand

trial, stating:

[Kiderlen has] a rational understanding of his current legal circumstances

and the proceedings against him. He has the ability to consult with his

lawyer and to provide meaningful information. If he does not do so, it

is because he chooses not to do so. 

Kiderlen moved for reconsideration, but the district court concluded that “every

attempt has been made to ensure that Defendant is competent to stand trial,” and

denied the motion. The court found that further attempts to evaluate Kiderlen would

not be fruitful, and set the trial for May 21, 2007.
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As the trial date approached, Kiderlen again moved to represent himself, this

time with standby counsel. After conducting a hearing that involved a colloquy with

Kiderlen, the court granted the motion, and the case proceeded to trial on that basis.

Kiderlen was found guilty by a jury. At sentencing, the district court calculated a

sentencing range of 360 months’ to life imprisonment under the advisory guidelines.

Because the statutory maximum was 240 months’ imprisonment, however, that term

became Kiderlen’s advisory guideline sentence. The court then considered the factors

in 18 U.S.C. § 3553(a) and sentenced Kiderlen to 240 months’ imprisonment. 

II.

A.

On appeal, Kiderlen challenges the district court’s finding that he was

competent to stand trial. In determining whether an accused is competent to proceed,

the district court must examine both whether the defendant has “a rational as well as

factual understanding of the proceedings against him,” and whether he “is able to

assist properly in his defense.” United States v. Ghane, 490 F.3d 1036, 1040 (8th Cir.

2007) (internal quotation omitted). We review the district court’s finding of

competency for clear error. Id.

As noted, the district court credited the opinion of Dr. Cunic and concluded that

Kiderlen was competent. In challenging the court’s finding on the first prong of the

competency analysis, Kiderlen points to his outbursts in court and his conversations

with defense counsel as evidence of irrational behavior and a general lack of

understanding of the proceedings. He also suggests that the court placed too much

emphasis on Dr. Cunic’s report, and did not give sufficient weight to Kiderlen’s past

psychological problems. With respect to the second prong, Kiderlen claims that he

was unable to assist in his defense because he was prone to mood swings and

irrationality, and often became hostile and belligerent with his standby counsel for no
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apparent reason. Kiderlen notes that he refused to speak to counsel at times, and that

his counsel thought Kiderlen did not exhibit a full understanding of the “Freeman”

concepts in his defense. 

These arguments were aired before the district court, but the court accepted Dr.

Cunic’s view that Kiderlen’s behavior was “a tactical and sophisticated response by

[Kiderlen] to his current legal circumstances.” Kiderlen’s behavior and his counsel’s

impressions are relevant to the competency determination, but “bizarre, volatile, and

irrational behavior” does not compel a finding of incompetence, Vogt v. United States,

88 F.3d 587, 591 (8th Cir. 1996) (internal quotations omitted), particularly where the

evidence supports a conclusion that the accused is attempting to manipulate the

criminal justice system. Dr. Cunic concluded from her interview that Kiderlen was

“doing a balancing act between his understanding political and legal ideology from

one subculture as well as understanding the political and legal terms of the current

court.” She reported that Kiderlen viewed the tactics of the Freeman movement as his

best legal strategy. She saw nothing in his mental status or cognitive abilities that

prevented Kiderlen from interacting appropriately with counsel, but predicted that he

may refuse to communicate with counsel for tactical reasons. 

There is no challenge to Dr. Cunic’s qualifications, and while Kiderlen

complains that Dr. Cunic did not conduct psychological testing, the evidence shows

that Kiderlen refused her effort to administer the tests. Kiderlen relies on information

concerning his psychological history gathered during the presentence process, but this

information did not reflect a diagnosis that Kiderlen suffered from a mental disease

that would render him incompetent for trial. In any event, Dr. Cunic’s examination

was more recent, and just as a “district court may rely on one of two competing

competency opinions given by qualified experts,” Ghane, 490 F.3d at 1040, it may

also credit a recent psychiatric evaluation over older information, so long as its

conclusion is supported by sufficient evidence. We see no clear error in the district
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court’s decision to credit Dr. Cunic’s contemporaneous expert opinion and to

conclude that Kiderlen was competent to proceed.

B.

Kiderlen also argues that even if he was competent to stand trial, his decision

to waive the right to counsel and proceed pro se was not knowing, intelligent, and

voluntary. We review de novo the district court’s decision to allow the defendant to

waive his right to counsel. United States v. Mahasin, 442 F.3d 687, 691 (8th Cir.

2006).

The Sixth Amendment grants an accused both the right to counsel and the

alternative right to proceed pro se. Faretta v. California, 422 U.S. 806, 807 (1975).

To represent himself, an accused must “knowingly and intelligently” waive his

constitutional right to counsel. Id. at 835. Because of “the enormous importance and

role that an attorney plays at a criminal trial,” the Supreme Court has “imposed the

most rigorous restrictions on the information that must be conveyed to a defendant,

and the procedures that must be observed, before permitting him to waive his right to

counsel at trial.” Patterson v. Illinois, 487 U.S. 295, 298 (1988). In Faretta, the

Court said that “[a]lthough a defendant need not himself have the skill and experience

of a lawyer in order competently and intelligently to choose self-representation, he

should be made aware of the dangers and disadvantages of self-representation, so that

the record will establish that ‘he knows what he is doing and his choice is made with

eyes open.’” 422 U.S. at 835 (quoting Adams v. United States ex rel. McCann, 317

U.S. 269, 279 (1942)). The Court upheld a waiver in Faretta where the record

showed that the defendant was “literate, competent, and understanding,” the trial

judge had warned the defendant that the judge thought it was a mistake not to accept

the assistance of counsel, and that the defendant would be required to follow all the

rules of trial procedure. 422 U.S. at 808 nn. 2-3, 835-36.
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In making the assessment of a waiver’s validity, we look to the particular facts

and circumstances in the case, including the background, experience, and conduct of

the accused. Meyer v. Sargent, 854 F.2d 1110, 1114 (8th Cir. 1988). The “key

inquiry,” we have said, is “whether the accused was made sufficiently aware of his

right to have counsel and of the possible consequences of a decision to forgo the aid

of counsel.” Id. (internal quotations omitted). We will uphold a district court’s grant

of a defendant’s motion to represent himself “if the record shows either that the court

adequately warned him or that, under all the circumstances, he knew and understood

the dangers and disadvantages of self-representation.” United States v. Patterson, 140

F.3d 767, 774-75 (8th Cir. 1998). 

In this case, the district court discussed self-representation with Kiderlen at two

separate hearings. On June 26, 2006, the court explained to Kiderlen that although he

had a constitutional right to represent himself, “the problem is that you are held to the

same standard as someone who has had a college degree, three years of law school,

and trained in the law.” The court told Kiderlen that he should not expect the court

to “get involved” and “help the person” representing himself, and that Kiderlen would

be “held to the same standard as an attorney representing herself or himself.” The

court also advised Kiderlen about the availability of “hybrid representation,” where

a court-appointed attorney is available for consultation, but Kiderlen told the court

that he wanted “no type of lawyer whatsoever.” The court then permitted Kiderlen to

represent himself until September 2006, at which time the court appointed counsel for

all remaining proceedings.

On May 7, 2007, Kiderlen presented a renewed request to serve as his own

primary counsel, with an appointed attorney as co-counsel. Kiderlen made a lengthy

statement objecting to the proceedings and asserting that the court lacked jurisdiction

over him as a “sovereign man.” The government urged the court to make a sufficient

record that Kiderlen made a knowing and intelligent waiver, and specifically asked

that the defendant be made aware of the dangers and disadvantages of self-
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representation. The government requested in open court that Kiderlen be informed

(1) that he was charged with transportation of child pornography, and that the range

of punishment was from five to twenty years in prison, with a fine of up to $250,000,

(2) that as a layperson, he would be unfamiliar with the rules of evidence or

procedure, and that it was not the court’s role to advise him or provide him with legal

assistance, (3) that it would be difficult for him or any lay person to try a case without

legal education and expertise, and that he would be best served by having a lawyer

represent him, and (4) that he must accept the consequences of his decision, such that

“if he represents himself pro se, he’s not going to be able to claim later on that he

wanted an attorney,” or that any conviction should be overturned. 

At that point, the court engaged in a colloquy with Kiderlen. The court

explained that standby counsel would be seated at counsel table with Kiderlen, and be

available to answer questions as the defendant saw fit. Kiderlen acknowledged that

he understood. The prosecutor, at the court’s direction, read the indictment and

described the range of possible punishment. The court told Kiderlen that a person

who represents himself is at a “natural disadvantage” because he lacks the skill and

training of an attorney, and that the rules of procedure are “somewhat complicated.”

The court reiterated that it would not be allowed to assist Kiderlen, and that a person

representing himself does so “at his own peril and at a very substantial disadvantage.”

 The court told Kiderlen that his standby counsel was experienced and capable, and

that Kiderlen’s best interests would be served by accepting representation. The court

also advised Kiderlen that any statements that he made while representing himself

could be used against him as an admission, while an attorney could make statements

that are not binding as admissions against a defendant, and that Kiderlen’s appellate

rights could be jeopardized by representing himself.

The court then inquired whether Kiderlen understood the court’s advice about

the perils and problems of self-representation. Kiderlen responded that he thought he

understood the court’s statements, but said he was confused by the prosecutor’s
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reading of the indictment, because it did not state “any type of liability.” The court

explained, however, that the indictment stated the offense charged, and Kiderlen

agreed. The court then asked whether Kiderlen had any questions for the court.

Kiderlen requested a copy of grand jury transcripts and a copy of the signed

indictment, and the government agreed to furnish them. Kiderlen then stated that he

had no further questions.

The record includes other information that is relevant to the validity of

Kiderlen’s waiver. Kiderlen was a high school graduate with one year of study at a

business college. He had experience with the criminal justice system, having

sustained fifteen convictions between 1990 and 2004. The district court had been

presented with Dr. Cunic’s psychological report, which indicated that Kiderlen was

capable of formulating a sophisticated response to his legal situation. During the

litigation, Kiderlen displayed knowledge of the trial process. Proceeding pro se, he

submitted questions for voir dire and exercised strikes for cause and peremptory

strikes. He raised objections at trial, some of which were sustained. He crossexamined witnesses, even prompting a compliment from the trial judge for

establishing inconsistent statements, and he consulted with his appointed standby

counsel during the trial.

We conclude that this record is sufficient to establish that Kiderlen’s waiver of

his right to counsel at trial was knowing, voluntary, and intelligent. The record

reflects that the district court advised Kiderlen of the charges and penalties that he

faced, and responded appropriately to questions that Kiderlen raised about them.

Kiderlen first professed confusion about the indictment because it did not establish

“liability,” but then acknowledged his understanding that the indictment did state the

offense charged against him. The court adequately warned Kiderlen about the dangers

of self-representation during the colloquies on June 26, 2006, and May 7, 2007, by

stressing at some length the complex duties of counsel in a criminal trial and

recommending that Kiderlen accept representation by a trained attorney. Consistent
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with Faretta, where the trial judge warned the defendant that he thought selfrepresentation was a mistake and explained that the defendant would have to follow

the rules of procedure, we have deemed warnings comparable to those administered

here sufficient to establish a valid waiver. See United States v. Abdul-Aziz, 486 F.3d

471, 475 (8th Cir. 2007); United States v. Mentzos, 462 F.3d 830, 838 (8th Cir. 2006);

Mahasin, 442 F.3d at 691; Patterson, 140 F.3d at 775. Kiderlen’s performance at trial

and his consultation with standby counsel further demonstrate that he was able to

grasp the charges against him, appreciate the consequences of his decision to proceed

pro se, and recognize his right to enjoy the assistance of counsel when it was desired.

Citing Wilkins v. Bowersox, 145 F.3d 1006 (8th Cir. 1998), Kiderlen contends

that the waiver was invalid, because the district court did not ensure that he

understood the charge against him, did not explain possible defenses or lesser

included offenses, and did not conduct an in-depth inquiry into his background,

personal characteristics, and mental health. Wilkins was an unusual case involving a

defendant who participated in a robbery and murder at age sixteen. Id. at 1108. He

was tried in state court as an adult, and informed the court that he wanted to waive his

right to counsel and proceed pro se, “because he desired to receive a death sentence

and his lawyer would not help him get the death penalty.” Id. at 1009. After the trial

court conducted “brief questioning” and encouraged Wilkins to accept the assistance

of counsel, the court accepted pro se guilty pleas and eventually sentenced Wilkins

to death. Id. at 1009-10. This court concluded that “[g]iven the combination of

Wilkins’s young age and the record evidence of his severely troubled childhood, the

state trial court’s colloquy with Wilkins was far from the kind of in-depth inquiry that

is necessary to ensure a valid waiver of counsel.” Id. at 1013. We further concluded

that “the evidence overwhelmingly indicates that Wilkins’s state of mind precluded

him from making a valid waiver of counsel,” id., noting the “uncontroverted

testimony” of several doctors that Wilkins’s decisions to waive the right to counsel
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and plead guilty “were the product of his mental illness and immaturity and not

rational decision making.” Id. at 1014.

In the course of discussing the adequacy of the trial court’s inquiry, Wilkins

relied on the plurality opinion in Von Moltke v. Gillies, 332 U.S. 708 (1948), which

expressed the view that a valid waiver must be made with “an apprehension of the

nature of the charges, the statutory offenses included within them, the range of

allowable punishments thereunder, possible defenses to the charges and circumstances

in mitigation thereof, and all other facts essential to a broad understanding of the

whole matter.” Id. at 724 (plurality opinion). We gave weight in Wilkins to the fact

that the state court did not explain possible defenses to charges, lesser included

offenses, or the full range of possible punishments, and took no account of Wilkins’s

upbringing, which involved severe child abuse, drug abuse, and several stays in

mental health facilities by the age of ten. 145 F.3d at 1012-13.

Neither the Supreme Court nor this court, however, has adopted the Von Moltke

plurality opinion in all of its particulars, and we reject Kiderlen’s contention that a

waiver of the right to counsel must exhibit all of the features discussed in Wilkins

before it is deemed knowing and voluntary. As noted, the waiver deemed valid in

Faretta itself, as well as those in Abdul-Aziz, Mentzos, Mahasin, and Patterson, were

effected without discussion between the trial court and the defendant of such matters

as lesser included offenses, defenses to the charges, and mitigating circumstances that

might be presented to the jury. Our decision in Meyer v. Sargent, 854 F.2d at 1114,

even upheld a waiver of counsel without a specific warning about the disadvantages

of self-representation, where other evidence showed that the defendant had the

necessary knowledge of the dangers and disadvantages of self-representation, and the

record indicated that the motion to proceed pro se was an obstructionist tactic

employed by the defendant during trial. Id. at 1114-15. Wilkins, therefore, is best

understood as a case-specific application of the general principle that our assessment

of a waiver depends “upon the particular facts and circumstances surrounding that
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case, including the background, experience, and conduct of the accused.” Meyer, 854

F.2d at 1114.

In this case, the court already was aware through its inquiry into mental

competency that Kiderlen intended to employ an unorthodox defense based on the

Freeman movement, and the court reasonably credited expert testimony that

Kiderlen’s choice was a tactical and sophisticated response to his legal situation. The

substance of the colloquy carried out by the district court has passed muster in a

number of our prior cases, and we do not think the circumstances here required more.

We are satisfied that the district court adequately warned Kiderlen of the dangers of

self-representation, and that Kiderlen understood them. We agree with the district

court that Kiderlen’s waiver of the right to counsel was knowing, voluntary, and

intelligent.

C.

Kiderlen next argues that his conviction for transporting child pornography was

not supported by sufficient evidence. Kiderlen claims that the prosecution failed to

establish beyond a reasonable doubt that he was the person who sent the e-mails

containing pornographic images to K.G. We must view “the evidence in the light

most favorable to the government, . . . accepting all reasonable inferences drawn from

the evidence that support the jury’s verdict,” and we will overturn a verdict only if “no

reasonable jury could have found the accused guilty beyond a reasonable doubt.”

United States v. Ellefson, 419 F.3d 859, 862-63 (8th Cir. 2005) (internal quotations

omitted).

The statute under which Kiderlen was charged, 18 U.S.C. § 2252A(a)(1),

applies to any person who knowingly transports or ships any child pornography in

interstate or foreign commerce by any means, including by computer. The

prosecution’s case centered on an e-mail received by a minor, K.G., from a sender
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identified as “kiddreamer1226,” which contained eight images of minors engaged in

sexual activity. Kiderlen asserts that there was insufficient proof that he sent the email.

We conclude that the evidence was sufficient to support the conviction. K.G.

testified that Kiderlen told her on the telephone on Saturday, May 29, 2004, that he

had sent her an e-mail with photographs that included a minor engaged in sexually

explicit activity. K.G.’s mother accessed K.G.’s account and located an e-mail from

“Steven and Angela Kiderlen Construction, LLC; kiddreamer1226@DirecWay.com,”

which included eight attached images that depicted minors engaged in sexually

explicit conduct. A search of Kiderlen’s residence located a billing statement from

DirecWay in Kiderlen’s name for an account in the name of “kiddreamer1226.”

Kiderlen’s wife testified that after law enforcement officials expressed interest in

searching Kiderlen’s computers, but before the search took place, Kiderlen destroyed

the hard drives from two home computers and disposed of them. This evidence was

more than sufficient to support a conclusion that Kiderlen sent the e-mail containing

child pornography to K.G.

D.

Finally, Kiderlen challenges his sentence of 240 months’ imprisonment.

Although this term was the advisory guideline sentence, Kiderlen contends that it is

substantively unreasonable under 18 U.S.C. § 3553(a). The district court explained

that it had considered all of the factors in § 3553(a), observed that the nature and

circumstances of the offense were “quite aggravated,” and cited Kiderlen’s “long

history of criminal behavior,” which resulted in twice the number of criminal history

points required to place a defendant in category VI under the guidelines. The court

concluded that the sentence must be substantial to reflect the seriousness of the

offense, to promote respect for the law, to provide just punishment, to afford adequate

deterrence to any further criminal conduct by Kiderlen, and to protect the public from
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further crimes of Kiderlen. In sum, the court found “no basis . . . to impose anything

but a guideline sentence in this case.” 

Kiderlen complains that the applicable sentencing guideline, USSG § 2G2.2,

should be afforded “less deference and weight than other Guideline sections when

fashioning a reasonable sentence,” because it is the product of congressional direction

in the PROTECT Act, Pub. L. No. 108-21, § 401(i), 117 Stat. 650, 673 (2003), rather

than the Sentencing Commission’s application of empirical data and national

experience. He further contends that the advisory guidelines unreasonably establish

a greater offense level for trafficking in child pornography than for such offenses as

traveling to engage in a prohibited sex act with a minor, USSG § 2G1.3, or aggravated

sexual abuse, see United States v. Kane, 470 F.3d 1277, 1282 (8th Cir. 2006). 

We are not persuaded that the sentence imposed is substantively unreasonable.

The Supreme Court has held that a court of appeals may apply a presumption of

reasonableness to a sentence within the advisory guideline range, because such a

presumption “recognizes the real-world circumstance that when the judge’s

discretionary decision accords with the [Sentencing] Commission’s view of the

appropriate application of § 3553(a) in the mine run of cases, it is probable that the

sentence is reasonable.” Rita v. United States, 551 U.S. 338, 350-51 (2007). It is true

that USSG § 2G2.2 is the product of congressional direction rather than the empirical

approach described by Rita. 551 U.S. at 348-49. The upshot is that the sentencing

judge’s discretionary decision under § 3553(a) in this case accords with Congress’

view of the appropriate application of § 3553(a) in the mine-run case, rather than with

the Commission’s independent view of the matter. We are inclined to think, however,

that in the real-world circumstance where a sentencing judge agrees with Congress,

then the resulting sentence is also probably within the range of reasonableness.

But even applying our independent view, without regard to any presumption,

we conclude that the district court selected a reasonable sentence. The court noted the
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aggravated nature of Kiderlen’s offense, which included a pattern of activity involving

the distribution to a minor, by computer, of child pornography involving prepubescent

minors engaged in sadistic or masochistic conduct. The court also found that Kiderlen

admitted to his wife that he had molested three minor girls. (S. Tr. 68). And the court

relied on Kiderlen’s extensive criminal history, which registered a criminal history

score of 30 points under the guidelines. Particularly under the deferential abuse of

discretion standard of review that we must apply, these factors were sufficient under

§ 3553(a) to justify the statutory maximum punishment of 240 months’ imprisonment.

Kiderlen also argues that his sentence violates the constitutional prohibition

against cruel and unusual punishment, because it is disproportionate to the crime. See

Ewing v. California, 538 U.S. 11, 20-24 (2003). The Eighth Amendment “forbids

only extreme sentences that are grossly disproportionate to the crime,” id. at 23

(internal quotations omitted), and a term of twenty years for an offender with

Kiderlen’s offense conduct and criminal history does not cross that threshold. The

distribution of child pornography is “a grave offense” that victimizes the children

depicted in the pictures, United States v. Weis, 487 F.3d 1148, 1153 (8th Cir. 2007),

and Kiderlen’s distribution is aggravated by his effort to send the images to a minor,

his admission of previous sexual contact with three other minor girls, and his

numerous prior criminal convictions. The Eighth Amendment does not proscribe the

punishment authorized by Congress and selected by the district court.

* * *

The judgment of the district court is affirmed. Kiderlen’s several pending pro

se motions are denied.

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