                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-30-2008

USA v. Densberger
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2229




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 07-2229
                                    ____________

                          UNITED STATES OF AMERICA

                                           v.

                               MARK DENSBERGER,

                                          Appellant
                                    ____________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                                (D.C. No. 06-cr-00295-1)
                     District Judge: Honorable James F. McClure
                                     ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 15, 2008

              Before: AMBRO, FISHER and MICHEL,* Circuit Judges.

                                (Filed: June 30, 2008 )
                                    ____________

                             OPINION OF THE COURT
                                  ____________




      *
        The Honorable Paul R. Michel, Chief Judge of the United States Court of Appeals
for the Federal Circuit, sitting by designation.
FISHER, Circuit Judge.

       Mark Densberger, Sr. appeals the order of the United States District Court for the

Middle District of Pennsylvania denying his motion to dismiss the charge against him.

Densberger also appeals the District Court’s judgment of sentence. For the following

reasons, we will affirm.

                                             I.

       Densberger was the adoptive father of three boys, Mark Jr., Bruce, and Bryan

Densberger. In May 2004, the oldest son, Bryan, contacted the Pennsylvania State Police

to report that his father raped him. In a two-page written statement, Bryan told the

Pennsylvania State Police that since October 1996, when he was thirteen years old,

Densberger had repeatedly sexually assaulted him and his brothers. Bryan alleged that his

father: (1) forced them to perform oral and anal sex on him and one another for both their

punishment and his pleasure, (2) videotaped many of the assaults that occurred during the

eight-year period, and (3) instructed his sons to bring girls home and have sex with them

in the martial arts studio (a converted detached garage) so Densberger could secretly

videotape those sexual acts.

       On May 15, 2004, a search warrant was executed on Densberger’s home in Milton,

Pennsylvania. Authorities recovered nine video tapes depicting Densberger engaging in

graphic sexual activity with his sons, his sons engaging in the same activity with one

another, and his sons engaging in sexual activity with three minor females. Densberger



                                             2
was charged under Pennsylvania law with possession of child pornography, incest, and

rape.

        On June 28, 2004, Densberger was released on bail from the county jail under the

condition that he not contact any of the victims. Later that day, Densberger was arrested

attempting to cross the Canadian border. His then seventeen-year-old son, Bruce, was

driving a separate vehicle a few cars behind Densberger. Bruce was detained when

border officials’ suspicions were aroused by the fact that court documents and $10,000 in

undeclared cash were in the vehicle. Densberger later stated that he was not attempting to

flee, but was taking a vacation camping trip. He claimed that the cash was a remnant of

Bruce’s efforts to gather the money to post his father’s bail.

        On November 8, 2004, Densberger entered into an agreement with the United

States whereby he agreed to plead guilty to one count of sexual exploitation of children in

violation of 18 U.S.C. § 2251.1 His plea was conditional, reserving the right to appeal an

adverse ruling on his pretrial motion challenging the constitutionality of § 2251(b).

        In January 2007, the probation officer filed a Presentence Report (PSR) with the

District Court. The PSR recommended: (1) a two-level obstruction of justice




        1
        Densberger pled guilty to 18 U.S.C. § 2251(b), which provides in pertinent part
that “[a]ny parent . . . who knowingly permits [a] minor to engage in, or to assist any
other person to engage in, sexually explicit conduct for the purpose of producing any
visual depiction of such conduct shall be punished . . . if such parent . . . knows or has
reason to know that such visual depiction . . . was produced using materials that have
been mailed, shipped, or transported in interstate or foreign commerce.”

                                              3
enhancement due to Densberger’s attempt to cross the border into Canada; (2) a four-

level multiple-victim enhancement for the videotapes involving the minor females; (3) a

two-level enhancement because Bryan and Bruce were under the age of sixteen when the

assaults on them began; (4) a four-level enhancement because Mark Jr. was under the age

of twelve when the assaults on him began; (5) a two-level enhancement because

Densberger was the parent of the victims; (6) a two-level enhancement because

Densberger knew or should have known that his sons, who were adopted between the

ages of nine and twelve and had histories of neglect and abuse, were vulnerable victims;

and (7) no downward adjustment for acceptance of responsibility, because although

Densberger pled guilty, at the time the PSR was submitted he had not provided the

requested written statement about his involvement in the offense.

       The enhancements recommended in the PSR led to a guideline sentence of 324-

405 months’ imprisonment. However, the statutory maximum is twenty years, which

adjusted the guideline sentence to 240 months.

       The District Court accepted the findings of the PSR in full. Under the Sentencing

Guidelines, the federal sentence was required to be served concurrently with

Densberger’s state sentence. U.S.S.G. § 5G1.3(b). Therefore, the Court reduced the

federal sentence to account for time already served on the state sentence. The final

sentence was 206 months’ imprisonment.




                                             4
                                              II.

         We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review

over the question of whether a statute is constitutional. United States v. Randolph, 364

F.3d 118, 121 (3d Cir. 2004). For sentencing appeals, we review the District Court’s

factual findings for clear error and exercise plenary review over its interpretation of the

sentencing guidelines. United States v. Grier, 475 F.3d 556, 568-70 (3d Cir. 2007) (en

banc).

                                             III.

                                              A.

         Densberger argues that 18 U.S.C. § 2251(b) is unconstitutional because it falls

outside the scope of Congress’ powers under the Commerce Clause. Section 2251(b)

penalizes a parent’s knowing permission of a child’s participation in the creation of a

“visual depiction [of child pornography that] was produced using materials that have been

mailed, shipped or transported in interstate or foreign commerce by any means.”

Densberger asserts that United States v. Lopez, 514 U.S. 549 (1995), and United States v.

Morrison, 529 U.S. 598 (2000), render this statute unconstitutional on its face and as

applied to him.

         We disagree. Lopez and Morrison struck down provisions that had only an

attenuated link to interstate commerce. In a published post-Morrison decision, however,

we concluded that 18 U.S.C. § 2251 was constitutional under the Commerce Clause.



                                              5
United States v. Galo, 239 F.3d 572, 576 (3d Cir. 2001) (citing United States v. Rodia,

194 F.3d 465, 468 (3d Cir. 1999)). Our conclusion was based on the reasoning that

“Congress rationally could have believed that intrastate possession of pornography has

substantial effects on interstate commerce.” Id. at 575.

       Our analysis in Galo is buttressed by the subsequent case of Gonzales v. Raich,

545 U.S. 1, 17 (2005). In Raich, the Supreme Court ruled that it was within the federal

government’s power to regulate the growing of marijuana for home consumption because

of the likelihood that this intrastate activity could affect interstate commerce. Id. at 23.

       In sum, Densberger’s argument – that his purely intrastate activity cannot be

regulated by Congress under Lopez and Morrison – is directly in opposition to controlling

precedent and is therefore unavailing.

                                              B.

       In addition to his constitutional argument, Densberger appeals his sentence.

Specifically, he appeals the District Court’s findings at sentencing with regard to Mark

Jr.’s age, the multiple-victim calculation, obstruction of justice, and the acceptance-of-

responsibility reduction.

                                              1.

       Densberger argues that the District Court failed to establish that Mark Jr.’s

statements were sufficiently reliable. U.S.S.G. § 6A1.3(a) (“In resolving any dispute

concerning a factor important to the sentencing determination, the court may consider



                                               6
relevant information without regard to its admissibility . . . , provided that the information

has sufficient indicia of reliability to support its probable accuracy.”). Therefore, he

states that the Court improperly applied the two-level enhancement based on its finding

that Mark Jr. was under twelve years old when the abuse began.

       The District Court did not err. Mark Jr. and his brothers made similar statements

that the abuse started within months of being adopted and the filming shortly thereafter.

Since Mark Jr. was adopted at age nine, these statements support a finding that he was

under the age of twelve when he was victimized. Densberger points to no record

evidence that would undermine the District Court’s decision to apply the enhancement.

Despite his arguments to the contrary, the brothers’ statements establish the necessary

reliability and accuracy needed to apply the four-level sentencing enhancement.

                                              2.

       There was no legal or factual error in the District Court’s decision to apply the

two-level obstruction-of-justice enhancement. Densberger was detained while attempting

to cross the Canadian border. He argues that this was not an attempt to flee, but a

camping trip. However, it was not clearly erroneous for the District Court to find this was

no ordinary camping trip. Densberger had been released from the county jail on bail that

day, and he and his son Bruce were stopped as they attempted to cross into Canada in

different cars. There was $10,000 in undeclared cash in Bruce’s car, Bruce could not

identify where they were going, there was no valid explanation for taking two separate



                                              7
vehicles, and moreover, Densberger was not permitted to contact Bruce as a condition of

his bail.

       An attempt to obstruct a state prosecution constitutes obstruction of justice in the

federal matter if there is a “nexus between the defendant’s conduct and the investigation,

prosecution, or sentencing of the federal offense.” United States v. Jenkins, 275 F.3d

283, 291 (3d Cir. 2001). In Jenkins, we concluded that a defendant’s failure to appear at

the state court proceeding had no effect on the federal investigation and therefore

warranted no enhancement. Id. In this case, unlike Jenkins, the District Court found that

Densberger’s flight would have obstructed both the state and federal investigations. The

enhancement applies equally to those who only attempt to obstruct justice and those who

succeed. The fact that Densberger did not escape does not render the enhancement

inapplicable, and the Court did not err in imposing it.

                                             3.

       Densberger advances purely factual arguments in his attack on the multiple-victim

enhancement that was based on the videotaping of the three minor females. He states that

he was not involved in the taping, and he points out that some of the evidence supports

his claim. However, the conflicting testimony he cites does not demonstrate clear error

on the part of the District Court. The Court exercised its fact-finding function and

concluded that certain portions of the evidence were more credible than other portions.

The Court found the sons’ statements credible when they reported that (1) their father



                                              8
instructed them to bring girls back to the martial arts studio and have sex with them,

(2) their father showed them how to set up the concealed camera, and (3) their father used

the tapes as “instruction videos.” The Court did not find credible the sons’ contradictory

statements that their father was not involved in the videotaping. Because the Court did

not clearly err, we will not disturb the application of this sentencing enhancement.

       Densberger requests that we adopt the view expressed by the dissent in Grier and

apply stricter standards of evidentiary support for sentencing enhancements. Following

our Internal Operating Procedures, we will not overrule a prior precedential decision. A

district court applies sentencing enhancements using a preponderance-of-the-evidence

standard. Grier, 475 F.3d at 568. The District Court in this case applied the proper

burden of proof.

                                             4.

       Finally, Densberger argues that the District Court erred in not reducing his

sentence by two levels for acceptance of responsibility. The District Court did not err in

withholding the sentence reduction. The Court based this decision on the commentary to

the Sentencing Guidelines, which states that “a defendant who falsely denies, or

frivolously contests, relevant conduct that the court determines to be true has acted in a

manner inconsistent with acceptance of responsibility.” U.S.S.G. § 3E1.1 comment 1(a).

       Merely agreeing to a conditional guilty plea does not definitively establish that a

defendant is entitled to a sentence reduction for acceptance of responsibility. See United



                                              9
States v. Ceccarani, 98 F.3d 126, 129 (3d Cir. 1996). The District Court concluded that

Densberger frivolously contested his son’s age at the time of the offenses. This

conclusion was not clearly erroneous, since Densberger’s argument that there was no

evidence of the victims’ ages flew in the face of the evidence, including the dates on

some of the videos and the victims’ consistent testimony. Therefore, we will affirm the

Court’s refusal to apply the acceptance-of-responsibility reduction.

                                            IV.

       For the foregoing reasons, we will affirm the District Court’s judgment.




                                            10
