United States v. Benjaman Shelabarger

770 F.3d 714, 2014 U.S. App. LEXIS 20081, 2014 WL 5334832
CourtCourt of Appeals for the Eighth Circuit
DecidedOctober 21, 2014
Docket14-1505
StatusPublished
Cited by6 cases

This text of 770 F.3d 714 (United States v. Benjaman Shelabarger) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Benjaman Shelabarger, 770 F.3d 714, 2014 U.S. App. LEXIS 20081, 2014 WL 5334832 (8th Cir. 2014).

Opinion

WOLLMAN, Circuit Judge.

Benjaman Shelabarger was convicted by a jury of receipt of visual depictions of minors engaging in sexually explicit conduct. The district court 1 imposed a sentence of 210 months’ imprisonment. Shelabarger appeals, arguing that the evidence was insufficient to support his conviction, that his senténce violates the Eighth Amendment, and that the district court incorrectly calculated his offense level under the United States Sentencing Guidelines (U.S.S.G. or Guidelines). We affirm.

I.

On January 2, 2013, Immigration and Customs Enforcement Special Agent Aaron Simon downloaded and identified child *716 pornography being shared through a file-sharing program from an IP address in the area of Waukee, Iowa. Simon and his team obtained a warrant and searched the home associated with the IP address. Shelabarger lived at the home with his half sister Angela Fyler, her mother, and his nephew N.F. After a forensic preview, Simon and his team seized several computers and data storage devices that they suspected might contain child pornography. One of the devices seized was one of Shelabarger’s laptops. Simon testified that when he interviewed Shelabarger, Shelabarger admitted to being the sole user of the laptop, to having an intermediate understanding of computers and a familiarity with filesharing programs, and to using the ARES file-sharing program. Forensic analysis of the laptop revealed several files containing child pornography. Some time after the initial search warrant was executed, Fyler contacted Simon about SD cards she and her mother had found inside a box of matches retrieved from Shelabarger’s room. Fyler testified that she had given Shelabarger the matchbox as a Christmas gift. Forensic analysis revealed that the SD cards contained numerous images and videos that constituted child pornography, as well as link files showing that child pornography on the cards had been viewed on Shelabarger’s laptop.

Evidence at trial indicated that four months before the search warrant was executed, Shelabarger had found pornography on the family’s shared computer. The forensic preview, however, did not reveal any traces of child pornography on that computer, and Fyler testified at trial that although they had confronted N.F. about pornography found on the main computer, they had found only adult and animated pornography. The government also presented evidence that many of the files containing child pornography had time stamps that corresponded with times when N.F. was in school. Shelabarger testified that Simon had put a gun in his face when he and his team searched the home, that they had used coercive or hostile interrogation tactics, that his laptop was unusable, and that he had never downloaded child pornography.

The jury found Shelabarger guilty of one count of receipt of visual depictions of minors engaging in sexually explicit conduct and one count of possession of child pornography. To avoid double jeopardy issues, the government dismissed the charge of possession of child pornography. The district court concluded at sentencing that a preponderance of evidence supported application of a 2-level enhancement under U.S.S.G. § 2G2.2(b)(3)(F) for distributing child pornography via the file-sharing program. After applying a 2-level enhancement for obstruction of justice under U.S.S.G. § 3C1.1, the district court imposed the above-described sentence of 210 months’ imprisonment.

II.

Shelabarger argues that the evidence presented at trial was insufficient to support his conviction. We disagree.

When reviewing the sufficiency of the evidence supporting a criminal conviction, we view the evidence in the light most favorable to the prosecution. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We will reverse only if no reasonable jury could have found the defendant guilty beyond a reasonable doubt. United States v. Birdine, 515 F.3d 842, 844 (8th Cir.2008). We typically do not review questions involving the credibility of witnesses because such questions are within the jury’s province. United States v. Hill, 249 F.3d 707, 714 (8th Cir.2001).

*717 Shelabarger was convicted of violating 18 U.S.C. § 2252(a)(2), which makes it a crime to “knowingly receive[ ], or distribute! ]” child pornography. Shelabarger argues that the government did not establish that he was the person who knowingly received or distributed the child pornography at issue. The government, however, presented ample evidence — both forensic and testimonial — to support the jury’s finding that Shelabarger was the person who had received or distributed the child pornography. Shelabarger was the owner of the laptop that forensics revealed contained several files constituting child pornography. Link files on the SD cards found in a matchbox in Shelabarger’s room showed that some of the child pornography on the files had been viewed on Shelabarger’s laptop. Both Fyler and her mother testified that the matchbox was Shelabarger’s. Although Shelabarger presented a different version of the story — implying that N.F. or a previous owner of the laptop was responsible for the files — the jury was entitled to make credibility determinations and reject his theory of the case. See United States v. Manning, 738 F.3d 937, 945 (8th Cir.2014) (holding that the jury was free to reject a defendant’s theory that he was not the one responsible for the child pornography). We conclude that there was sufficient evidence to support Shelabarger’s conviction.

III.

Shelabarger asserts that his sentence violates the Eighth Amendment. We disagree.

We review Eighth Amendment challenges de novo. United States v. Van-horn, 740 F.3d 1166, 1169 (8th Cir.2014). Determining whether a sentence for a term of years violates the Eighth Amendment involves two steps. First, the court compares the gravity of the offense to the harshness of the penalty, considering the defendant’s culpability and the harm or threat of harm to the victim or to society. See Henderson v. Norris, 258 F.3d 706, 709 (8th Cir.2001). Only if this threshold inquiry leads to the inference that the sentence is grossly disproportionate to the crime committed will the court proceed to the second step: an inter- and intra jurisdictional analysis. See id. at 712. “A sentence within the statutory limits is generally not subject to [Eighth Amendment] review.” See United States v. Atteberry, 447 F.3d 562, 565 (8th Cir.2006) (alteration in original) (quoting United States v. Boone,

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770 F.3d 714, 2014 U.S. App. LEXIS 20081, 2014 WL 5334832, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-benjaman-shelabarger-ca8-2014.