 United States Court of Appeals
            For the Eighth Circuit
        ___________________________

                No. 16-1441
        ___________________________

             United States of America

        lllllllllllllllllllllPlaintiff - Appellee

                           v.

                   John T. Beyers

      lllllllllllllllllllllDefendant - Appellant
        ___________________________

                No. 16-1443
        ___________________________

             United States of America

        lllllllllllllllllllllPlaintiff - Appellee

                           v.

                   John T. Beyers

      lllllllllllllllllllllDefendant - Appellant
                      ____________

    Appeals from United States District Court
for the Western District of Missouri - Kansas City
                 ____________
                          Submitted: November 14, 2016
                              Filed: April 27, 2017
                                 ____________

Before RILEY,1 Chief Judge, SMITH and KELLY, Circuit Judges.
                               ____________

RILEY, Chief Judge.

       John Beyers was caught with child pornography in May 2013, less than a year
after getting out of prison for a 2007 child-pornography conviction. Beyers pled
guilty to accessing and possessing child pornography, see 18 U.S.C. § 2252(a)(4)(B),
and possessing child obscenity, see id. § 1466A(b)(2), and also admitted violating the
terms of his supervised release. The district court2 sentenced Beyers to the statutory
mandatory minimum for each offense—ten years for the 2013 counts and five for the
supervised-release violation, see id. §§ 2252(b)(2), 3583(k)—and ran the sentences
for the new conduct concurrently to each other, but consecutively to the revocation
sentence. See id. § 3584(a) (concurrent and consecutive sentences). Beyers argues
making the sentences consecutive was an abuse of discretion and his resulting fifteen-
year term of imprisonment is substantively unreasonable. See 28 U.S.C. § 1291
(appellate jurisdiction); United States v. Moore, 565 F.3d 435, 437-38 (8th Cir. 2009)
(abuse-of-discretion standard of review). Beyers’s appeal centers on how the district
court weighed different aspects of his background in reaching its decision.




      1
       The Honorable William Jay Riley stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 10,
2017. He has been succeeded by the Honorable Lavenski R. Smith.
      2
       The Honorable Beth Phillips, United States District Judge for the Western
District of Missouri.

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      First, Beyers identifies three mitigating factors he says the district court
ignored. Two of these are childhood traumas that, according to Beyers, “have
influenced his behavior and his addiction to child pornography”: the sexual abuse
Beyers himself suffered when he was a young child and Beyers’s father committing
suicide when Beyers was a teenager. The third mitigating factor is Beyers’s
amenability to therapy and desire for treatment.

       The district court did not ignore these matters—they were a major focus of
Beyers’s sentencing hearing. The district court heard about Beyers’s background,
past treatment, and wish for help “get[ting] out from underneath [his addiction]” from
both Beyers and a therapist who reviewed Beyers’s file and interviewed him. The
district court actively questioned both of them about the treatment options available
to Beyers during his incarceration. The district court directly responded to Beyers’s
argument about his need for treatment when it told him “this is ultimately your
responsibility and something that you have to take control of, and there’s only so
much that others can do to help you address this problem.”

        “[W]here the district court heard argument . . . about specific . . . factors, we
may presume that the court considered those factors” even if the court did not address
them expressly. United States v. Keating, 579 F.3d 891, 893 (8th Cir. 2009). Here,
where the district court did expressly address the essence of Beyers’s position—that
he must recognize his problem and where it comes from and must want to overcome
it, and needs more and better help to do so—we are satisfied the district court did not
“‘fail[] to consider a relevant factor that should have received significant weight.’”
Moore, 565 F.3d at 438 (quoting United States v. Kowal, 527 F.3d 741, 749 (8th Cir.
2008)).

       On the other side of the scale, Beyers argues the district court should not have
faulted him for “argu[ing] [he had] never harmed anyone.” According to Beyers, he
misspoke when he said, in his allocution, “I’ve never hurt any person.” Beyers insists

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he fully appreciates the “devastating” harm caused by the production and use of child
pornography, having been sexually abused as a child himself, and just meant “he had
not physically hurt a child through actual sexual contact.” The record makes clear the
district court knew what Beyers meant and simply took issue with how he said it. In
the district court’s words: “I understand what you’re saying, but the problem is this
is a very serious offense that has devastating consequences to the victims of this
offense.” Although the district court made a point of repudiating Beyers’s literal
claim, its explanation for running the sentences consecutively focused on the severity
of what Beyers did and his history of failed treatment rather than on this isolated
statement. Further, even if the district court’s ruling was attributable in some part to
Beyers’s unfortunate phrasing, we see no abuse of discretion in viewing Beyers’s
emphasis on crimes he did not commit as potentially reflecting a failure to come to
terms with the “devastating consequences to the victims of this offense.”3

       We also reject Beyers’s claim that the district court improperly punished him
for “point[ing] out deficiencies in the treatment he received” before and after his 2007
conviction. He is referring to the district court’s statement: “I’m really troubled by
this consistent argument—or at least explanation, maybe, would be a better
phrase—that the treatment wasn’t sufficient.” Beyers counters with assertions about
what the record does and does not show—“[t]here is no factual support in the record
to buttress the notion that therapy would not work or that Mr. Beyers was somehow
responsible for his lack of success in his past efforts” and, to the contrary, parts of the
record affirmatively “suggest[] that there was a problem with the sex offender


      3
        Similarly, in response to Beyers’s suggestion that the fact he never physically
abused a child “should have been [a] mitigating factor[],” we simply observe that
Beyers was sentenced for accessing and possessing pornographic and obscene
pictures of children, see 18 U.S.C. §§ 2252(a)(4)(B), 1466A(b)(2), nothing else. Had
Beyers committed other crimes, he would have faced the possibility of other charges
and a longer sentence. In short, the hypothetical crimes Beyers did not commit do not
mitigate the real ones he did.

                                           -4-
treatment” Beyers received. That response aims at the wrong target. The sort of
evidence Beyers describes (or its absence) goes to whether Beyers’s explanation that
he reoffended because the system failed him was accurate, but that is not the issue the
district court addressed.

       Rather, the district court thought Beyers’s proffered explanation was
significant and troubling primarily because, in the district court’s view, Beyers’s
focus on the failure of his past treatment—whoever was to blame—implied he did not
fully accept that his new crimes were still “ultimately [his] responsibility.” The
district court’s comments also suggest Beyers’s past inability to control his conduct
through treatment (again, whatever the cause or the quality of the treatment)
contributed to the district court’s “concern” about the risk of Beyers reoffending
again and the need to protect the public. See 18 U.S.C. § 3553(a)(2)(C). Both lines
of reasoning and concern strike us as entirely reasonable. Neither was an abuse of
discretion.

       Beyers’s last argument is that, in making his sentences consecutive, the district
court clearly misjudged the proper balance between the various sentencing factors it
weighed. On this point, Beyers mainly just repeats his theories about which factors
the district court should and should not have considered. The only real addition is
Beyers’s suggestion that the district court should have given him more credit for
recognizing his “problem” and wanting to change, because “[a]cting as [one’s] own
mental health advocate and asking for better therapy . . . is taking responsibility.” Yet
“‘[a] sentencing court has wide latitude to weigh the section 3553(a) factors in each
case and assign some factors greater weight than others in determining an appropriate
sentence.’” United States v. Richart, 662 F.3d 1037, 1054 (8th Cir. 2011) (quoting
United States v. Lozoya, 623 F.3d 624, 627 (8th Cir. 2010)); see also id. (“Simply
because the district court weighed the relevant factors more heavily than [a
defendant] would prefer does not mean the district court abused its discretion.”). The
district court’s decision to run the sentences consecutively was also reinforced by

                                          -5-
other considerations whose countervailing weight Beyers does not address at all,
notably the district court’s “concern” that accessing and possessing child
pornography “creates a danger to the public” and that “the ramifications [for violating
the terms of supervised release] have to be appropriate.”

      The relevant policy statement from the U.S. Sentencing Commission
recommends making prison terms for violating supervised-release conditions
consecutive to any other sentences. See United States Sentencing Guidelines
§ 7B1.3(f) & cmt. n.(4). It was not an abuse of discretion for the district court to
follow that advice here.

      Beyers’s sentences are affirmed.
                      ______________________________




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