                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 08-3359
                                    ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Western District of Missouri.
William S. Price,                       *
                                        *      [UNPUBLISHED]
             Appellant.                 *
                                    __________

                              Submitted: April 15, 2009
                                 Filed: April 23, 2009
                                  ___________

Before RILEY, BENTON, and SHEPHERD, Circuit Judges.
                            ___________

PER CURIAM.

      On March 22, 2007, William S. Price (Price) pled guilty to a two count
information charging Price with (1) the use of a minor to engage in sexually explicit
conduct for the purpose of producing child pornography in violation of 18 U.S.C.
§ 2251(a), and (2) receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2).
The district court1 sentenced Price to 600 months imprisonment, followed by lifetime
supervised release, and restitution in the amount of $271,675. Price appeals his
sentence. We affirm.

      1
      The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.
I.    BACKGROUND
      On June 12, 2006, Price’s wife took their home computer to a local computer
technician. The technician located video files in the computer which contained the
name of Price’s minor step-daughter, and the technician showed Price’s wife the
content of those files. The video files depicted Price’s fifteen-year old step-daughter,
drugged and unconscious, being sexually assaulted by Price. The local police were
contacted.

      The police obtained search warrants for Price’s home and for Price’s place of
employment at the Missouri State Veterans’ Home, where Price worked as a nurse
supervisor. During the searches, police seized computers, controlled medications,
needles, syringes, condoms, lubricants, contraceptives, a camera, and a camera tripod.
The medications included narcotics, sedatives, muscle relaxants, anti-nausea
medication, Viagra, anesthesia, and drugs designed to reverse the sedative effects of
anesthesia.

       The Federal Bureau of Investigation (FBI) obtained a search warrant to view
the content of the computers seized by the police. On one computer, the FBI located
eight videos and several still images of Price sexually assaulting his unconscious step-
daughter. The FBI also uncovered a file sharing program, entitled Kazaa Lite, which
enables users to share files and to transfer files from computer to computer, bypassing
a server. During Price’s sentencing hearing, FBI Special Agent Kurt Lipanovich
(Agent Lipanovich) testified Price made over 3,165 videos and other images of
pornography available for sharing on Kazaa Lite. Price obtained most of these images
through Kazaa Lite. Agent Lipanovich could not clarify exactly how many of these
images included child pornography because some of the images were duplicates, some
involved adult females, and some of the images may have been created with the use
of different computer programs, such as Photoshop.




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       On March 22, 2007, Price pled guilty, pursuant to a plea agreement, to (1) using
a minor to engage in sexually explicit conduct for the purpose of producing child
pornography, and (2) receipt of child pornography. Under the terms of the plea
agreement, Price waived his right to a jury determination beyond a reasonable doubt
of all facts used to determine and enhance his sentence. Price also consented to
judicial fact-finding by a preponderance of the evidence as to all contested sentencing
issues.

        The district court sentenced Price on October 8, 2008. During the sentencing
hearing, evidence was presented on several different issues related to Price’s sentence
and potential enhancements under the advisory United States Sentencing Guidelines
(Guidelines or U.S.S.G.). Based upon the evidence presented, the district court found
(1) Price’s actions were sadistic, resulting in a four level increase to Price’s Guidelines
range under U.S.S.G. § 2G2.2(b)(4); (2) Price obstructed justice by destroying
evidence, resulting in a two level increase under U.S.S.G. § 3C1.1; (3) Price
distributed child pornography in expectation of receiving a thing of value, resulting
in a five level increase under U.S.S.G. § 2G2.2(b)(3)(B); (4) Price engaged in a
pattern of activity involving the sexual abuse or exploitation of a minor, resulting in
a five level increase under U.S.S.G. § 2G2.2(b)(5); and (5) Price possessed more than
600 images of child pornography on his computer, resulting in a five level increase
under U.S.S.G. § 2G2.2(b)(7)(D). After applying these enhancements, the district
court sentenced Price to 360 months imprisonment on Count 1 and a consecutive 240
months on Count 2. Price now appeals his sentence claiming the district court
violated Price’s Sixth Amendment right to a jury trial by enhancing Price’s sentence
based solely upon judge-found facts.

II.   DISCUSSION
      Price claims it is violative of the Sixth Amendment to increase a sentence based
upon facts that are neither admitted by a defendant nor proven to a jury beyond a
reasonable doubt. “We review claims of constitutional error de novo.” United States

                                           -3-
v. Gentry, 555 F.3d 659, 662 (8th Cir. 2009) (citations omitted). Price’s contention
is without merit.

       “Other than the fact of a prior conviction, any fact that increases the penalty for
a crime beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490
(2000). However, “judicial factfinding is permissible at sentencing so long as the
district court understands that the sentencing guidelines are advisory only.” United
States v. Brave Thunder, 445 F.3d 1062, 1065 (8th Cir. 2006) (citation omitted); see
also Rita v. United States, 551 U.S. 338, ___, 127 S. Ct. 2456, 2465-66 (2007) (stating
the Sixth Amendment does not forbid a sentencing court from taking account “of
factual matters not determined by a jury” (citations omitted)). “Under an advisory
Guidelines regime, sentencing judges are only required to find sentence-enhancing
facts by a preponderance of the evidence.” United States v. Garcia-Gonon, 433 F.3d
587, 593 (8th Cir. 2006) (citation omitted).

      Because the district court applied the Guidelines as advisory, and because there
were sufficient facts in the record to support the district court’s findings by a
preponderance of the evidence, the district court did not err in enhancing Price’s
sentence based upon those findings. Additionally, in the plea agreement, Price
“consent[ed] to judicial fact-finding by a preponderance of the evidence of any
contested issues pertaining to the determination of [Price’s] sentence,” and “waive[d]
any right to a jury determination beyond a reasonable doubt of all facts used to
determine and enhance the sentence imposed.”

III.   CONCLUSION
       We affirm Price’s sentence and the judgment of the district court.
                      ______________________________




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