                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-1659
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Western District of Missouri.
Brian D. Gnavi,                         *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: October 20, 2006
                                Filed: January 24, 2007
                                 ___________

Before WOLLMAN, RILEY, and GRUENDER, Circuit Judges.
                           ___________

WOLLMAN, Circuit Judge.

       Following Brian Gnavi’s plea of guilty to attempting to receive child
pornography mailed in interstate commerce, a violation of 18 U.S.C. § 2252(a)(2), the
district court1 sentenced him to 120 months’ imprisonment and a life term of
supervised release. Gnavi appeals, arguing that his sentence is unreasonable. We
affirm.




      1
      The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.
                                           I.

      In October 2003, the Blue Springs Missouri Police Department informed the
United States Postal Inspection Service (“USPIS”) that Gnavi was the subject of
numerous citizen complaints spanning a six-year period. These complaints alleged
that Gnavi had followed school buses, had waited around school bus stops, and had
followed a female jogger. On the basis of this information, described in greater detail
below, USPIS determined that Gnavi would be a suitable subject for an undercover
program targeting individuals who have exhibited a sexual interest in children.

      In December 2003, Postal Inspector Donna Osborne, adopting the alias JD
Roget, sent Gnavi a letter informing him that she was interested in trading or selling
child pornography. Osborne offered to send Gnavi a catalogue of videos and
cautioned Gnavi that because the material was illegal, Gnavi should be discreet.
Gnavi replied to the letter, stating, “I was curious if with your video list you could
maybe send any sample videos/or pics? Anything would be appreciated.”

       In January 2004, Osborne sent Gnavi a letter reiterating the illegal and sexual
nature of the videos. Accompanying this letter was a list of eleven child pornographic
videos, which included short, sexually explicit descriptions of their contents. Osborne
later sent out another letter, informing Gnavi that she would not send Gnavi a free
sample because she had “been burned too many times.” (Plea Agreement 4). Gnavi
responded, stating “[s]urley [sic] you could still send a still phot [sic] or something so
I could safely purchase these videos w/o worrying I’m set up. Please do this as I am
interested in these videos D-8, D-6, A16, A19, A23, S12, & S20.”

      In December 2004, Osborne informed Gnavi that she would be sending him a
tape “with a few minutes from 3 of the videos you chose.” On December 24, 2004,
a controlled delivery of a tape containing child pornographic material was made to
Gnavi’s home. After Gnavi’s father signed for the delivery, postal inspectors

                                           -2-
executed an anticipatory search warrant for the home. The inspectors found in
Gnavi’s bedroom a pornographic magazine entitled Barely Legal, in which Gnavi had
concealed the last three letters sent by Osborne. Gnavi’s dresser drawers contained
numerous pictures from magazines, catalogs and newspapers, the majority which
depicted minor females in underwear and swimsuits. Also found in Gnavi’s bedroom
were 175 videotapes, six of which were reviewed at the scene and were found to
contain television footage relating to young girls, including footage pertaining to little
girls’ beauty pageants and dance recitals. Gnavi was present during the viewing of
these videotapes and explained that he used the videotapes and the pictures in his
dresser drawers as pornography. He also admitted to following minor females and
watching minors at the school and public pool. He denied having had any sexual
contact with minors and said that he had never solicited or enticed a child for sex.

       The presentence report reflects numerous complaints about Gnavi, including
the following. In March 2005, a citizen filed a complaint with the police, stating that
he had noticed a black Nissan truck parked at a school bus stop. When the citizen
approached the truck (which was registered to Gnavi), it took off at a high rate of
speed. An officer later described the vehicle to area children. Several children told
the officer that the operator of the truck drove up to them, unrolled his window, and
attempted to talk to them. One month later, a school resource officer received a
complaint that a black Nissan truck had been following a sixteen-year-old girl while
she was jogging, stopping its pursuit only when the girl started walking alongside two
people that she did not know. Later, as she was approaching her home, the girl saw
the black truck waiting in her neighborhood, whereupon she began running through
yards and jumping over fences until she could return home. Gnavi was later identified
as the driver. The presentence report also describes various other complaints, from




                                           -3-
1999 to 2002, most of which involve reports that Gnavi had followed school buses or
young females.2

       The presentence report also describes pending stalking charges. In April 2005,
Gnavi allegedly attempted to entice a 14-year-old girl into his truck. He told her that
he wanted help looking for his dog and offered to get her drunk afterwards. He had
been stalking the girl for three years. When he was arrested, Gnavi acted in a
belligerent manner and struck an officer with his elbow, an action resulting in a charge
of resisting arrest.

       The presentence report calculated a total offense level of 27 and criminal
history category of III, which resulted in a guidelines range of 87 to 108 months. The
offense level determination was based, in part, on U.S.S.G. § 2G2.2(b)(7)(C), which
applies a four-level enhancement for offenses that involve at least 300, but fewer than
600 images. The probation officer appears to have reasoned that Gnavi’s offense
involved between 300 and 600 images because he had attempted to receive seven
videos, which are considered under the relevant Application Note to have 75 images
each. See Application Note 4 to U.S.S.G. § 2G2.2(b)(7)(C). The criminal history
category calculation included one point for a municipal conviction for failing to yield
to an emergency vehicle. The criminal history calculation also reflected two points
which were added because Gnavi was on probation for the municipal conviction when
he committed the instant offense.




      2
       One serious complaint that did not involve a minor female took place in 1998.
Gnavi allegedly attacked a pregnant woman at a car wash. He reportedly reached
under her skirt, exposed himself, and demanded that the woman perform oral sex on
him. When she refused, he forced her onto the front seat of her car and attempted to
remove her clothing before she escaped. The case was dismissed because the victim,
apparently seeking to avoid additional trauma during her pregnancy, refused to
cooperate. She later agreed to testify, but the statute of limitations had expired.

                                          -4-
       At sentencing, Gnavi contested both the offense level and the criminal history
category assessed in the presentence report. With regard to the offense level, Gnavi
argued that because he did not attempt to obtain the seven videos, the four-level
enhancement was improper. He also contended that assessing a criminal history point
for his municipal conviction and two additional points because he had been on
probation for this conviction at the time of his child pornography offense was
inappropriate. The district court sustained both of Gnavi’s objections and determined
that his total offense level was a 23 and his criminal history category was a II,
resulting in an advisory guideline range of 63 to 78 months.

       Having calculated a guidelines range of 63 to 78 months, the district court
imposed a sentence of 120 months. The district court, recognizing that this sentence
was “substantially” above the guidelines range, stated that this variance was imposed
out of concern for public safety. The court noted that Gnavi was different from other
defendants because he had gone beyond the consumption of child pornography and
had been “acting out in the community towards children.” (Sent. Tr. 35).

                                           II.

      On appeal, Gnavi claims that his 120 month sentence represents an
unreasonable upward variance from the top of the applicable guidelines range of 63
to 78 months.

       Before discussing the variance, we first address the government’s argument that
the district court’s calculation of the advisory range was too low and that Gnavi’s
sentence therefore represents only a modest variance from the correct guidelines
range.3


      3
        Gnavi claims that the government is precluded from contesting the district
court’s guidelines calculation because the government did not file a cross-appeal. We

                                         -5-
        The government contends first that Gnavi attempted to receive seven videos and
thus should have been assessed a four-level enhancement. The government argues
that Gnavi attempted to receive 525 images because he expressed interest in seven
videos in his November letter. What Gnavi was asking for in that letter, however, was
a “still phot [sic] or something.” His expression of interest in the videos did not rise
to the level of an attempt to obtain them. Cf. United States v. Brown, 862 F.2d 1033,
1038 (3d Cir. 1988) (recognizing that a letter in which a defendant states that he is
interested in three child pornographic videos “might be considered an inquiry rather
than an order”). Gnavi did, however, request “sample videos/or pics” in December
2003. This request, coupled with his November 2004 letter, supports the conclusion
that he attempted to receive a sample video. A two-level enhancement for 75 images
was therefore appropriate.

       The government also argues that Gnavi should have been assessed three
criminal history points for his conviction for failure to yield to an emergency vehicle.
The government appears to reason that because the emergency vehicle in question was
a police vehicle, Gnavi’s conviction falls under the auspices of U.S.S.G. §
4A1.2(c)(1). Pursuant to 4A1.2(c)(1), a conviction for a crime resembling failure to
obey a police officer will be counted for criminal history purposes if the conviction
results in a term of probation of at least one year (as was the case here). This
particular conviction, however, is more analogous to a minor traffic infraction, a crime
that falls under the heading of 4A1.2(c)(2) and which garners no criminal history
points. The gravamen of the offense for which Gnavi was convicted is the obstruction

disagree. The government is defending rather than challenging the sentence imposed
by the district court and, in so doing, is not bound by the district court’s reasoning or
its calculations. See United States v. Hill, 42 F.3d 914, 917 n.8 (5th Cir. 1995)
(noting that although the government did not file a cross-appeal, it could contest a
sentencing determination made by the district court because “[t]he Government is not
seeking to enlarge Hill’s sentence, or to otherwise alter the judgment; instead, it
proffers an alternative legal theory upon which the district court’s imposition of a
consecutive sentence may be upheld”).

                                          -6-
of emergency vehicles and not the flouting of a police officer’s lawful authority. After
all, Gnavi would have been just as guilty of failure to yield if the vehicle in question
had been a fire truck or an ambulance; the fact that a police officer was operating the
vehicle was incidental to the crime.4 Because Gnavi’s offense was more akin to a
traffic infraction, we believe that the district court properly declined to assess criminal
history points for Gnavi’s municipal conviction.

       We turn next to the variance imposed by the district court. We review the
reasonableness of the sentence imposed for abuse of discretion. United States v.
Haack, 403 F.3d 997, 1003 (8th Cir. 2005). A sentence within the guideline range is
presumed to be reasonable. United States v. Lincoln, 413 F.3d 716, 717 (8th Cir.
2005). Sentences deviating from the guideline range can be reasonable so long as the
sentencing judge offers appropriate justification under the factors specified in 18
U.S.C. § 3553(a). United States v. Claiborne, 439 F.3d 479, 481 (8th Cir. 2006), cert.
granted, 127 S. Ct. 551 (2006). A sentence outside the guideline range may be
inappropriate if the sentencing judge “fails to consider a relevant factor that should
have received significant weight, gives significant weight to an improper or irrelevant
factor, or commits a clear error of judgment by arriving at a sentence outside the
limited range of choice dictated by the facts of the case.” United States v. Likens, 464
F.3d 823, 825 (8th Cir. 2006) (citing Haack, 403 F.3d at 1004). The further the
district court varies from the presumptively reasonable guideline range, the more
compelling the justifications based on the § 3553(a) factors must be. United States
v. McMannus, 436 F.3d 871, 874 (8th Cir. 2006).


      4
        We also note that it is not clear that Gnavi’s offense involved disobedience to
an officer’s order. The presentence report states that Gnavi “failed to stop his vehicle
at a reasonable distance after the Blue Springs, Missouri, police officer activated the
emergency equipment on the police vehicle.” (P.S.R. 13). It is not specified whether
Gnavi failed to yield entirely or yielded at an unreasonable distance. If Gnavi yielded
at an unreasonable distance, one could well conclude that Gnavi did obey the officer’s
instruction, albeit imperfectly.
                                           -7-
        As the district court recognized, the 54 percent upward variance from the top
of the applicable guideline range is significant. In light of the record, however, we do
not believe that the district court exceeded the proper limits of its discretion in
imposing a sentence of 120 months. The imposition of this variance was motivated
primarily by the need to protect the public, a sentencing factor specified by §
3553(a)(2)(C).5 Gnavi, as the district court observed, was not a simple consumer of
child pornography — he was an individual who “[has] been acting out in the
community towards children.” (Sent Tr. at 35). This conclusion is sufficiently
justified by Gnavi’s lengthy and troubling record of stalking and preying upon minors.
Accordingly, we conclude that the district court’s concern for public safety was well
founded.

       Gnavi contends that the district court placed undue weight on the need to
protect the public and did not take other factors into sufficient consideration, such as
the need to avoid unwarranted sentencing disparities and Gnavi’s significant work
history. We disagree. First, although the district court did not expressly state that it
was considering the need to prevent unwarranted sentencing disparities, the district
court made it clear that Gnavi’s predatory behavior differentiated him from other
defendants. This is an implicit recognition of the need to avoid unwarranted
sentencing disparities. Second, although factors mentioned at sentencing such as
Gnavi’s employment history and his desire to obtain his G.E.D. are relevant to
sentencing determinations, we do not believe they undermine the reasonableness of
the district court’s sentence in this case. Finally, we are unpersuaded by Gnavi’s
attempt to minimize the seriousness of his conduct toward children. Gnavi points out
that, apart from his pending stalking charges, his actions towards minors had not
resulted in arrests. He notes also that the stalking charges are misdemeanor offenses.
Whatever Gnavi’s record lacks in criminal penalties, however, it makes up for in


      5
        In its amended statement of reasons, the district court also noted Gnavi’s need
for extensive psychological counseling.
                                          -8-
length and duration, for it reflects a number of complaints and incidents spanning a
six-year period. In light of this disturbing record, we cannot conclude that the district
court’s reliance on the need to protect the public was an abuse of discretion.

       Gnavi also contends that the district court failed to provide an adequate
statement of its consideration of the § 3553(a) factors. Although a district court is
required to consider each of the § 3553(a) factors, it need not “categorically rehearse”
each of these factors as long as it is clear that they were considered. United States v.
Dieken, 432 F.3d 906, 909 (8th Cir. 2006). Here, the district court stated that “I
haven’t walked through all of the 3553 factors, but I have taken all those things into
account.” (Sent. Tr. at 36). Thus, although the district court did not discuss each of
the factors explicitly, we are satisfied that, as the district court itself acknowledged,
it took them into account.

      The judgment is affirmed.
                      ______________________________




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