1 The Honorable Michael J. Davis, United States District Judge for the District of Minnesota. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 06-1056

___________ United States of America, *
* Plaintiff - Appellee, * * Appeal from the United States v. * District Court for the District * of Minnesota. Jason George Johnson, *
* Defendant - Appellant. *

___________ Submitted: June 13, 2006 Filed: June 19, 2006

___________ Before MURPHY, MELLOY, and COLLOTON, Circuit Judges.

___________ MURPHY, Circuit Judge.

Jason George Johnson pled guilty without a plea agreement to two counts of distribution and one count of possession of child pornography, in violation of 18 U.S.C. §§ 2252(a)(1), 2252(b)(1), 2252(a)(5)(B ), 2252A(b)(2). The district court 1 sentenced him to a term of 121 months, and Johnson appeals, asserting that the preponderance standard used to impos e the sentencing enhancements was-2- unconstitutional, that there was insufficien t evidence for the enhancements imposed, and that the sentence was unreasonable. We affirm.

Johnson admits that he possessed and di stributed child pornography. At the sentencing hearing an FBI agent testif ied that in May 2003 an undercover agent investigating child exploitation had initiated contact withJohnson's screen name and began communicating with him. During their online contact, Johnson stated that he was interested in having sex with the agen t's claimed nieces after they were drugged and wanted to record the sex on videotape; the nieces were described as being 7, 11, and 14 years old. He also ag reed to trade child pornography with the agent. After the agent sent Johnson a corrupted file, the ap pellant transmitted two videos of a girl approximately 4 to 6 years of age having vagi nal intercourse with an adult male in one video and performing oral sex in the other.

While executing a search warrant at Johnson's residence in March 2004, the FBI seized a hard drive that contained ove r 350,000 images of pornography, at least 700 of them involving children (90% of wh ich involved children who were under 12 or prepubescent according to the agent’s estimate), and 246 distinct video files containing what appeared to be child pornography. During an interview after the search, Johnson made numerous admissions, in cluding that he had been receiving and trading for child pornography since 1998, was sexually attracted to children, that he had digitally penetrated a 12 or 13 year old neighbor when he was young, and that he would find it interesting to be with a child.

After an evidentiary hearing, the distri ct court issued a written order applying five sentencing enhancements: 1) a 2 level increase under U.S.S.G. § 2G2.2(b)(1) because the images displayed prepubescent minors under the age of 12, 2) a 5 level increase under U.S.S.G. § 2G2.2(b)(2)(B) because Johnson distributed images with the expectation of receiving a thing of va lue, 3) a 4 level increase under U.S.S.G. § 2G2.2(b)(3) because Johnson traded or possessed images portraying sadistic and2 The guideline sections are cited to the 2003 edition of the guidelines manual applied by the district court because J ohnson’s offenses occurred between May 15, 2003 and March 2004. See U.S.S.G. § 1B1.11(b)(1).
-3- violent conduct, 4) a 2 level increase under U.S.S.G. § 2G2.2(b)(5) because Johnson conceded that he used a co mputer to send and receive child pornography, and 5) a 5 level increase under U.S.S.G. § 2G2.2(b)(6 )(D) because Johnson conceded that his offense involved over 600 images of child pornography. 2A presentence report was prepared, and Johnson did not object to its statement of facts but only challenged its recommended enhancements. With only a base offense level of 17 and criminal history category I, the advisory guideline range would have been 24 to 30 months. The five enhancements applied by the districtcourt resulted in a total offense level of 35, however, and an advisory guideline range of 121 to 151 months. The district court sentenced Johnson to 121 months.

Johnson asserts that the sentencing enhancements violated his due process rights and that the proper standard of proof should be beyond a reasonable doubt. Alternatively, he requests that we at l east adopt a clear and convincing standard in cases in which enhancements have a "dispr oportionate impact on the sentence." It is clearly established in this circuit that sentencing enhancements must be proven by a preponderance of the eviden ce, however. See, e.g. , United States v. Garcia-Gonon , 433 F.3d 587, 593 (8th Cir. 2006) (c iting United States v. Pirani , 406 F.3d 543, 551 n. 4 (8th Cir. 2005) (en banc)).

Johnson also argues that even under a preponderance of evidence standard there was insufficient evidence for three of the enhancements: those under U.S.S.G. § 2G2.2(b)(1) (images displaying prepube scent minors), U.S.S.G. § 2G2.2(b)(2)(B) (distribution with the expectation of receiving a thing of value), and U.S.S.G. § 2G2.2(b)(3) (images portray ing sadistic or violent conduct). Prepubescent minors were clearly involved, sin ce the child in one of the videos Johnson sent has been identified and was known to be under 12 when the images were created. Johnson-4- distributed images to receive something of value when he traded his videos with the undercover agent. Images portraying sadis tic conduct were also involved since sexual penetration of a minor female by an a dult male is per se sadistic. SeeUnited States v. Belflower , 390 F.3d 560, 561 (8th Cir. 2004).

We conclude that the transcript of the evidentiary hearing, the district court’s order on enhancements, and the unobjected to facts in the presentence report demonstrate that there was sufficient s upporting evidence for imposition of the three enhancements. Application of the enhancem ents was also consistent with the intent of Congress in passing the PROTECT Act to prevent the sexual exploitation of children. See The Prosecutorial Remedies and Other Tools To End the Exploitation of Children Today Act of 2003 (PROTECT Act), Pub. L. No. 108-21 (Apr. 30, 2003); see also United States v. Baker , 445 F.3d 987, 993 n.1 (7th Cir. 2006) (Congress intended crimes against children to be "punish ed with the severity they deserve").

Finally, Johnson asserts that the guide line sentence imposed is unreasonable in light of 18 U.S.C. § 3553(a). He points out that he was sexually abused as a young boy, that his interest in checking whether th ere were pictures of himself available on the Internet led him to child pornography, a nd that he otherwise had a law abiding life and an honorable discharge from the Marine Corps.

The district court imposed a sentence at the low end of the guideline range after noting its obligation to review the 18 U.S.C. § 3553(a) factors. A sentence within the advisory guideline range is presumptively reasonable, seeUnited States v. Lincoln , 413 F.3d 716, 717 (8th Cir. 2005), and based on all the circumstances we conclude that Johnson’s sentence was not unreasonable.

Accordingly, we affirm the judgment of the district court.

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