United States v. Hennings

23 F.4th 820

UNITED STATES of America, Plaintiff - Appellee

v.Robert Joe HENNINGS, Defendant - Appellant

No. 20-3483

United States Court of Appeals, Eighth Circuit.

Submitted: October 18, 2021

Filed: January 21, 2022

Craig Peyton Gaumer, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, Des Moines, IA, for Plaintiff - Appellee.

Aaron D. Hamrock, MCCARTHY & HAMROCK, West Des Moines, IA, for Defendant - Appellant.

Robert Joe Hennings, Pro Se.

Before SMITH, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.

PER CURIAM.

After Dropbox reported that a customer was using its services to store child pornography, law enforcement officers traced the account to Robert Joe Hennings in Des Moines, Iowa. The Dropbox account stored 2,380 images and 6,215 videos of child pornography, which Hennings had organized into folders and subfolders.

Dropbox reported that 23 files had been shared from Hennings's account. A search of his BlackBerry and SD card revealed an additional 45 images and 1,104 videos of child pornography. Hennings pleaded guilty to one count of receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2) and (b)(1).

At sentencing, the district court¹ concluded that Hennings's base offense level was 22 under U.S. Sentencing Guidelines (Guidelines or U.S.S.G.) § 2G2.2(a)(2). Over Hennings's objection, the district court increased the offense level to 40 for specific offense characteristics, including the following: distribution in exchange for valuable consideration, U.S.S.G. § 2G2.2(b)(3)(B) ; material portraying sadistic or violent conduct or sexual abuse or exploitation of an infant or toddler, U.S.S.G. § 2G2.2(b)(4) ; and 600 or more images, U.S.S.G. § 2G2.2(b)(7)(D). The district court denied Hennings any reduction for acceptance of responsibility, U.S.S.G. § 3E1.1. With a criminal history category of I, Hennings's sentencing range was 292 to 365 months’ imprisonment. Because the range exceeded the 20-year statutory maximum sentence, 18 U.S.C. § 2252(b)(1), 240 months’ imprisonment became the Guidelines sentence, U.S.S.G. § 5G1.1(a), which was that which the district court imposed upon Hennings.

Hennings argues that the district court erred in applying the offense-level increases set forth above and in denying him an offense-level reduction for acceptance of responsibility. We review the district court's application of the Guidelines de novo and its factual findings for clear error. United States v. Zeaiter, 891 F.3d 1114, 1121 (8th Cir. 2018).

Hennings argues that the district court erred in considering the Dropbox files when it calculated his offense level. He contends that his Dropbox account stored only URLs and hyperlinks, which he described as "groups of letters, numbers, and characters that, when plugged into the Internet, could lead to questionable content." Def.’s Sentencing Mem. 2. The district court did not rely upon URLs or hyperlinks in determining Hennings's offense level, however. The government submitted an affidavit of the case agent who had personally reviewed the contents of the Dropbox account. The affidavit explained that the account stored "approximately 136 Gigabytes of content," including thousands of images and videos of child pornography, which "were not ‘URLs’, but actual files." The district court thus did not clearly err in finding that Hennings's Dropbox account stored "actual images and videos," not just URLs or hyperlinks.²

Hennings next argues that the district court erred in applying the five-level enhancement for "distribut[ion] in exchange for any valuable consideration," U.S.S.G. § 2G2.2(b)(3)(B). According to Hennings, he did not intend to receive child pornography or any valuable consideration when he shared material. The PSR set forth information from an October 2017 chat exchange over Kik messenger between Hennings and another user. Hennings told the user that he no longer shared links to child pornography, but that he would send "a short video or two here on K[ik]" in exchange for a photo of the user's chest or penis. After receiving a photo, Hennings promised to send child pornography and asked whether the user "prefer[red] junior high or under 7." Hennings thereafter sent the user child pornography. Because Hennings did not object to this information, the district court properly relied upon it to find that Hennings had distributed child pornography for the purpose of obtaining something valuable, i.e. , the photo of the user's chest or penis. See U.S.S.G. § 2G2.2 cmt. n.1 (enhancement applies when "the defendant agreed to an exchange with another person under which the defendant knowingly distributed to that other person for the specific purpose of obtaining something of valuable consideration from that other person").

Hennings also argues that the district court erred in applying the four-level enhancement for material that portrays sadistic or violent conduct or "sexual abuse or exploitation of an infant or toddler," U.S.S.G. § 2G2.2(b)(4). Hennings contends that he merely "possessed a library of hyperlinks that, when followed, may have portrayed this type of material." Appellants Br. 14. Hennings's SD card stored images of prepubescent boys being anally raped. See United States...