United States v. Khan

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 12, 2025
• Docket: 24-2119
• Status: Unpublished

Opinion

Appellate Case: 24-2119 Document: 35-1 Date Filed: 08/12/2025 Page: 1 FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS August 12, 2025 FOR THE TENTH CIRCUIT Christopher M. Wolpert _________________________________ Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 24-2119 (D.C. No. 2:12-CR-02901-MIS-KBM-1) ERIK BILAL KHAN, (D. N.M.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before MATHESON, CARSON, and FEDERICO, Circuit Judges. _________________________________

Erik Khan is serving a 240-month sentence after pleading guilty to

distributing, receiving, possessing, and attempting to produce child

*After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 24-2119 Document: 35-1 Date Filed: 08/12/2025 Page: 2

pornography. Proceeding pro se1, he appeals the district court’s denial of his

motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). He also

appeals the denial of his motion to unseal a portion of the record. We have

jurisdiction under 28 U.S.C. § 1291.

We affirm the denial of Mr. Khan’s § 3582 motion for a sentence

reduction. As for the denial of the motion to unseal, the government now

represents that “appellate counsel re-examined the [sealed document] and

concluded that it does not need to remain under seal,” and has “therefore

filed a motion to unseal the document under the indicative ruling provision

of Federal Rule of Criminal Procedure 37 and Federal Rule of Appellate

Procedure 12.1.” Resp. Br. at 32. It moves this court for a limited remand.

The district court has entered an indicative ruling pursuant to Fed. R. Crim.

P. 37(a)(3) expressing its intent to grant the government’s motion to unseal

on remand, so we grant the government’s motion and remand for that sole

purpose.

I

Mr. Khan pleaded guilty to four counts: (1) distribution of child

pornography, (2) receipt of child pornography, (3) possession of child

1 Because Mr. Khan proceeds pro se, we construe his arguments liberally, but we “cannot take on the responsibility of serving as [his] attorney in constructing arguments and searching the record.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).

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pornography, and (4) attempted production of child pornography. See

18 U.S.C. §§ 2251(a), 2252(a)(2), (a)(4)(B). His plea agreement expressly

acknowledged the statutory maximum sentence the court could impose

based only on count 4 was up to forty years, and both parties acknowledged

at his sentencing hearing that the Sentencing Guideline range for this count

alone was 262–327 months. See R.5 at 457. Consistent with Mr. Khan’s plea

agreement, though, in which the government agreed “that a specific

sentence . . . [was] the appropriate disposition of the case,” Fed. R. Crim. P.

11(c)(1)(C), the district court sentenced him to twenty years (240 months)

on all four counts to run concurrently.

In 2023, the United States Sentencing Commission amended the

Guidelines. The amendments included the addition of § 4C1.1, “Adjustment

for Certain Zero-Point Offenders,” made retroactive to offenders who were

still serving terms of imprisonment. Section 4C1.1 included a two-level

decrease for certain offenders with zero criminal-history points. But the

criteria for eligibility for this decrease included that “the instant offense of

conviction is not a sex offense.” U.S.S.G. § 4C.1.1(a)(5) (U.S. Sent’g Comm’n

2023). The Guidelines, at the time2 and as relevant here, defined “sex

2 In a recent revision, the Guidelines removed the requirement that

an offense be “perpetrated against a minor” to qualify as a sex offense. See U.S.S.G. § 4C1.1(b)(2) (Nov. 1, 2024).

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offense” in relevant part as “an offense, perpetrated against a minor.”

Id. § 4C.1.1(b)(2)(A).

In his § 3582 motion, Mr. Khan sought a 30-month reduction in his

sentence under § 4C1.1. The district court denied the motion on two

independent grounds, concluding (1) Mr. Khan’s child pornography offenses

were, in fact, “sex offense[s]” under § 4C1.1, so he was ineligible for relief;

and (2) even if he were eligible, a sentence reduction was unwarranted

when considering the factors in 18 U.S.C. § 3553(a).

Regarding the latter determination, the district court considered the

nature and circumstances of Mr. Khan’s offense, which involved the

possession of over 18,000 images and 3,000 videos of child pornography, “a

truly disturbing amount and by far the most [the district court had] ever

seen in one case.” R. 2 at 120. The court also considered some of the evidence

Mr. Khan presented to argue he posed a low risk of recidivism, such as his

Bureau of Prisons Recidivism Risk Assessment, which categorized him as

“R-MIN”, see R. 2 at 123, but it found that evidence unpersuasive in light of

the length of time he had been offending and the volume of child

pornography he had amassed. The court found Mr. Khan’s sentence, still

well below the Guideline range for Count 4 at sentencing, was “sufficient,

but not greater than necessary, to reflect the seriousness of the offenses, to

promote respect for the law, and to provide just punishment for the offenses;

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to afford adequate deterrence to criminal conduct; and to protect the public

from further crimes of the defendant.” Id. at 123.

This appeal followed.

II

We start first by discussing the standards by which we consider this

appeal. “We review for an abuse of discretion a district court’s decision to

deny a reduction of sentence under 18 U.S.C. § 3582(c)(2).” United States v.

Piper, 839 F.3d 1261, 1265 (10th Cir. 2016) (internal quotation marks

omitted). “The scope of a district court’s authority in a sentencing

modification proceeding under . . . § 3582(c)(2) is a question of law that we

review de novo.” Id. (internal quotation marks omitted). “A district court

abuses its discretion when it relies on an incorrect conclusion of law or a

clearly erroneous finding of fact,” id. (internal quotation marks omitted), or

“when it renders a judgment that is arbitrary, capricious, whimsical, or

manifestly unreasonable,” United States v. Lewis, 594 F.3d 1270, 1277

(10th Cir. 2010) (internal quotation marks omitted).

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The district court’s authority to modify a sentence is restricted by

statute:

A district court may not modify a term of imprisonment once it has been imposed except that . . . in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission . . . , the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.

18 U.S.C. § 3582(c)(2). Courts presented with motions under this subsection

therefore undertake a two-step inquiry. “At step one, § 3582(c)(2) requires

the court to follow the Commission’s instructions in [U.S.S.G.] § 1B1.10 to

determine the prisoner’s eligibility for a sentence modification and the

extent of the reduction authorized.” Dillon v. United States, 560 U.S. 817,

827 (2010). “At step two . . . , § 3582(c)(2) instructs a court to consider any

applicable § 3553(a) factors and determine whether, in its discretion, the

reduction authorized by reference to the policies relevant at step one is

warranted in whole or in part under the particular circumstances of the

case.” Id.

A

The district court concluded it did not have the authority to modify

Mr. Khan’s sentence because his guilty pleas to various child pornography

offenses amounted to offenses “perpetrated against a minor” and were

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therefore “sex offenses” under § 4C1.1. This court interpreted “sex offense”

similarly when construing a different Guideline, U.S.S.G. § 5D1.2(b)(2),

which addresses supervised-release terms for offenders convicted of “a sex

offense.” See United States v. Kimler, 335 F.3d 1132, 1147 (10th Cir. 2003).

Mr. Khan argues that Kimler did not hold child pornography offenses

are categorically perpetrated against a minor because it “merely accepted

the district court’s statement on the issue without conducting any

interpretive analysis.” Aplt. Opening Br. at 25. But this argument is

unpersuasive. In Kimler, this court rejected the argument that a statute

requiring DNA-collection from those convicted of a “sex offense” did not

affect § 2252 offenders:

The Supreme Court has made it clear that the distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children. The materials produced are a permanent record of the children’s participation and the harm to the child is exacerbated by their circulation.

335 F.3d at 1145–46 (internal quotation marks, alterations, and citation

omitted). It then went on to conclude “for the same reasons” that a person

convicted under § 2252 had, in fact, committed an offense “against a minor.”

Id. at 1147. Mr. Khan offers no persuasive reason why Kimler’s logic would

not also apply to § 4C1.1. So the district court did not err when it concluded

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his distribution of child pornography constituted a “sex offense” under

§ 4C1.1(b)(2) and that he was therefore ineligible for a reduced sentence.3

B

Even if Mr. Khan were eligible for a sentence reduction, the district

court concluded it would not grant him a reduction in light of the § 3553(a)

factors. Again, we review that decision for an abuse of discretion.

Mr. Khan argues the district court abused its discretion when it made

this conclusion because, considering his case’s “extensive and convoluted

history, a more thorough review period was warranted than the 14 days

between [the district court judge]’s assignment . . . and her decision.” Aplt.

Opening Br. at 41.

But the district court’s decision evidenced thorough consideration of

the relevant § 3553(a) factors, including findings regarding “the nature and

circumstances of [Mr. Khan’s] offenses,” R. 2 at 120–22, see § 3553(a)(1); an

3 Mr. Khan also asserts the government “effectively abandoned any

opposition to [his] interpretation [of § 4C1.1]” and that “[t]his failure to contest Khan’s interpretation at the district court level should preclude any attempt to dispute this issue on appeal.” Aplt. Opening Br. at 32. But the government expressly cited Kimler to the district court when it argued he was not eligible for a sentence reduction because he committed a sex offense. See Suppl. R. II at 49–50. Even if it had not so argued, “we treat arguments for affirming the district court differently than arguments for reversing it. We have long said that we may affirm on any basis supported by the record, even if it requires ruling on arguments not reached by the district court or even presented to us on appeal.” Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130 (10th Cir. 2011).

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analysis of his risk to the public in which the court expressed skepticism

over his asserted low risk of recidivism, R. 2 at 122–23, see § 3553(a)(2)(C);

and an assessment of his sentence in comparison to the relevant Guidelines,

id. at 123–24, see § 3553(a)(4). Mr. Khan has not presented any authority

obliging us to find an abuse of discretion based only on the time it took to

decide the motion.

Mr. Khan likewise argues the court did not sufficiently analyze his

objections to his original Guideline calculations, see id. at 42–44, and that

its analysis “failed to adequately account for the impact of technology on

offense conduct,” id. at 44. He further argues the court “failed to adequately

account for the harsh conditions of [his] confinement, both during his

pretrial detention at Dona Ana County Detention Center and his time at

FCI Fort Dix during the COVID-19 pandemic.” Id. at 48.

But even if these arguments sufficiently established that the district

court could have arrived at a different decision on the record before it, they

do not establish the court’s sentence was “arbitrary, capricious, whimsical,

or manifestly unreasonable.” Lewis, 594 F.3d at 1277. So, even if Mr. Khan

was eligible for a sentence reduction under § 3582(c)(2), the district court

did not abuse its discretion when it declined to give him one.

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III

We affirm the judgment of the district court. We remand for the

district court to grant the government’s motion to unseal dated

December 18, 2024 (ECF No. 293). We grant Mr. Khan’s motions to file an

oversized, out-of-time reply brief.

Entered for the Court

Richard E.N. Federico Circuit Judge