                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 14-1505
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

          Benjaman Shelabarger, also known as Benjamin Shelabarger

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                 for the Southern District of Iowa - Des Moines
                                 ____________

                          Submitted: September 11, 2014
                             Filed: October 21, 2014
                                 ____________

Before WOLLMAN, LOKEN, and MURPHY, Circuit Judges.
                         ____________

WOLLMAN, Circuit Judge.

      Benjaman Shelabarger was convicted by a jury of receipt of visual depictions
of minors engaging in sexually explicit conduct. The district court1 imposed a
sentence of 210 months’ imprisonment. Shelabarger appeals, arguing that the

      1
        The Honorable James E. Gritzner, Chief Judge, United States District Court
for the Southern District of Iowa.
evidence was insufficient to support his conviction, that his sentence violates the
Eighth Amendment, and that the district court incorrectly calculated his offense level
under the United States Sentencing Guidelines (U.S.S.G. or Guidelines). We affirm.

                                          I.

        On January 2, 2013, Immigration and Customs Enforcement Special Agent
Aaron Simon downloaded and identified child pornography being shared through a
file-sharing program from an IP address in the area of Waukee, Iowa. Simon and his
team obtained a warrant and searched the home associated with the IP address.
Shelabarger lived at the home with his half sister Angela Fyler, her mother, and his
nephew N.F. After a forensic preview, Simon and his team seized several computers
and data storage devices that they suspected might contain child pornography. One
of the devices seized was one of Shelabarger’s laptops. Simon testified that when he
interviewed Shelabarger, Shelabarger admitted to being the sole user of the laptop,
to having an intermediate understanding of computers and a familiarity with file-
sharing programs, and to using the ARES file-sharing program. Forensic analysis of
the laptop revealed several files containing child pornography. Some time after the
initial search warrant was executed, Fyler contacted Simon about SD cards she and
her mother had found inside a box of matches retrieved from Shelabarger’s room.
Fyler testified that she had given Shelabarger the matchbox as a Christmas gift.
Forensic analysis revealed that the SD cards contained numerous images and videos
that constituted child pornography, as well as link files showing that child
pornography on the cards had been viewed on Shelabarger’s laptop.

      Evidence at trial indicated that four months before the search warrant was
executed, Shelabarger had found pornography on the family’s shared computer. The
forensic preview, however, did not reveal any traces of child pornography on that
computer, and Fyler testified at trial that although they had confronted N.F. about
pornography found on the main computer, they had found only adult and animated

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pornography. The government also presented evidence that many of the files
containing child pornography had time stamps that corresponded with times when
N.F. was in school. Shelabarger testified that Simon had put a gun in his face when
he and his team searched the home, that they had used coercive or hostile
interrogation tactics, that his laptop was unusable, and that he had never downloaded
child pornography.

      The jury found Shelabarger guilty of one count of receipt of visual depictions
of minors engaging in sexually explicit conduct and one count of possession of child
pornography. To avoid double-jeopardy issues, the government dismissed the charge
of possession of child pornography. The district court concluded at sentencing that
a preponderance of evidence supported application of a 2-level enhancement under
U.S.S.G. § 2G2.2(b)(3)(F) for distributing child pornography via the file-sharing
program. After applying a 2-level enhancement for obstruction of justice under
U.S.S.G. § 3C1.1, the district court imposed the above-described sentence of 210
months’ imprisonment.

                                         II.

     Shelabarger argues that the evidence presented at trial was insufficient to
support his conviction. We disagree.

       When reviewing the sufficiency of the evidence supporting a criminal
conviction, we view the evidence in the light most favorable to the prosecution. See
Jackson v. Virginia, 443 U.S. 307, 319 (1979). We will reverse only if no reasonable
jury could have found the defendant guilty beyond a reasonable doubt. United States
v. Birdine, 515 F.3d 842, 844 (8th Cir. 2008). We typically do not review questions
involving the credibility of witnesses because such questions are within the jury’s
province. United States v. Hill, 249 F.3d 707, 714 (8th Cir. 2001).



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        Shelabarger was convicted of violating 18 U.S.C. § 2252(a)(2), which makes
it a crime to “knowingly receive[], or distribute[]” child pornography. Shelabarger
argues that the government did not establish that he was the person who knowingly
received or distributed the child pornography at issue. The government, however,
presented ample evidence—both forensic and testimonial—to support the jury’s
finding that Shelabarger was the person who had received or distributed the child
pornography. Shelabarger was the owner of the laptop that forensics revealed
contained several files constituting child pornography. Link files on the SD cards
found in a matchbox in Shelabarger’s room showed that some of the child
pornography on the files had been viewed on Shelabarger’s laptop. Both Fyler and
her mother testified that the matchbox was Shelabarger’s. Although Shelabarger
presented a different version of the story—implying that N.F. or a previous owner of
the laptop was responsible for the files—the jury was entitled to make credibility
determinations and reject his theory of the case. See United States v. Manning, 738
F.3d 937, 945 (8th Cir. 2014) (holding that the jury was free to reject a defendant’s
theory that he was not the one responsible for the child pornography). We conclude
that there was sufficient evidence to support Shelabarger’s conviction.

                                         III.

      Shelabarger asserts that his sentence violates the Eighth Amendment. We
disagree.

       We review Eighth Amendment challenges de novo. United States v. Vanhorn,
740 F.3d 1166, 1169 (8th Cir. 2014). Determining whether a sentence for a term of
years violates the Eighth Amendment involves two steps. First, the court compares
the gravity of the offense to the harshness of the penalty, considering the defendant’s
culpability and the harm or threat of harm to the victim or to society. See Henderson
v. Norris, 258 F.3d 706, 709 (8th Cir. 2001). Only if this threshold inquiry leads to
the inference that the sentence is grossly disproportionate to the crime committed will

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the court proceed to the second step: an inter- and intra-jurisdictional analysis. See
id. at 712. “A sentence within the statutory limits is generally not subject to [Eighth
Amendment] review.” See United States v. Atteberry, 447 F.3d 562, 565 (8th Cir.
2006) (alteration in original) (quoting United States v. Boone, 869 F.2d 1089, 1092-
93 (8th Cir. 1989)).

       Shelabarger’s sentence is not grossly disproportionate to the gravity of his
offense. Shelabarger’s offense was a serious crime that harmed many victims. See
United States v. Weis, 487 F.3d 1148, 1153 (8th Cir. 2007) (describing the harms
resulting from the consumption of child pornography). As set forth in the
Presentence Report, Shelabarger possessed 171 videos and 852 images containing
child pornography, including files that depicted minors under the age of twelve or
that were of a violent, sadistic, or masochistic nature. When compared with the
gravity of the crime, Shelabarger’s 210-month term of imprisonment does not violate
the Eighth Amendment.

                                         IV.

        Shelabarger argues that the district court calculated his sentencing range
incorrectly. We review a district court’s findings of fact for clear error and examine
its interpretation and application of the Guidelines de novo. United States v. Mashek,
406 F.3d 1012, 1017 (8th Cir. 2005). The government bears the burden of proving
the applicability of an enhancement to the offense level, but the defendant bears the
burden of proving the applicability of a reduction to the offense level. United States
v. Dinges, 917 F.2d 1133, 1135 (8th Cir. 1990) (citing United States v. Wilson, 884
F.2d 1355, 1356 (11th Cir. 1989)).

       Shelabarger contends that he is entitled to a 2-level reduction in his offense
level pursuant to U.S.S.G. § 2G2.2(b)(1). This 2-level reduction is applicable when
(1) the base offense level was determined to be 22 under § 2G2.2(a)(2), (2) “the

                                         -5-
defendant’s conduct was limited to the receipt or solicitation of” child pornography,
and (3) “the defendant did not intend to traffic in, or distribute, such material[.]”
U.S.S.G. § 2G2.2(b)(1).

       Shelabarger essentially contends that any individual convicted of receipt of
child pornography who has a base offense level of 22 and who does not “intend” to
traffic or distribute the unlawful material is entitled to the 2-level reduction.
Shelabarger’s reading ignores the second requirement for the reduction. To qualify
for the 2-level reduction, a defendant’s conduct must have been “limited to the receipt
or solicitation of” the material. See United States v. Ray, 704 F.3d 1307, 1313 (10th
Cir. 2013) (“The requirements . . . are conjunctive.”); see also United States v. Fore,
507 F.3d 412, 415-16 (6th Cir. 2007). The district court applied a distribution
enhancement under § 2G2.2(b)(3), so Shelabarger’s conduct could not have been
“limited to the receipt or solicitation of” child pornography.2 See United States v.
Baker, 742 F.3d 618, 623-24 (5th Cir. 2014); Ray, 704 F.3d at 1313-14. Since
Shelabarger does not dispute the applicability of the distribution enhancement—and
since there was ample evidence to support application of the enhancement for
distribution of the files containing child pornography—Shelabarger is not entitled to
the 2-level reduction under § 2G2.2(b)(1).




      2
       Shelabarger points to the Sentencing Commission’s “Reason for Amendment”
(RFA), which states that “individuals convicted of receipt of child pornography with
no intent to traffic or distribute the material essentially will have an adjusted offense
level of level 20, as opposed to . . . level 22 . . . prior to application of any other
specific offense characteristics.” U.S.S.G. Manual app. C, amend. 664 (2011). To
the extent that it glosses over the second requirement of § 2G2.2(b)(1), however, the
RFA cannot override the operative language of the Guidelines provision. See Ray,
704 F.3d at 1314.

                                          -6-
       Shelabarger also challenges the district court’s decision to apply a 2-level
enhancement for obstruction of justice under U.S.S.G. § 3C1.1, which directs courts
to increase the offense level by 2 if:

      (1) the defendant willfully obstructed or impeded, or attempted to
      obstruct or impede, the administration of justice with respect to the
      investigation, prosecution, or sentencing of the instant offense of
      conviction, and (2) the obstructive conduct related to (A) the
      defendant’s offense of conviction and any relevant conduct; or (B) a
      closely related offense[.]

U.S.S.G. § 3C1.1. To apply the § 3C1.1 enhancement based on a defendant’s false
statements under oath, the district court must decide by a preponderance of evidence
whether the defendant committed perjury and must make independent findings to
establish willful impediment or obstruction of justice. United States v. Petrovic, 701
F.3d 849, 859 (8th Cir. 2012). “‘A witness testifying under oath’ commits perjury
when he ‘gives false testimony concerning a material matter with the willful intent
to provide false testimony.’” Id. (quoting United States v. Dunnigan, 507 U.S. 87, 94
(1993)).

      The district court did not err by imposing a 2-level enhancement under § 3C1.1.
The court independently concluded that a preponderance of evidence supported its
finding that Shelabarger testified falsely and willfully under oath. The court found
that Shelabarger testified falsely about downloading child pornography, about the
functionality of his laptop computer, and about the circumstances of his interrogation.
Shelabarger’s testimony on these subjects was inconsistent with the forensic evidence
and other witnesses’ testimony.3 At least some of this false testimony concerned


      3
      Although the forensic evidence did suggest that the laptop’s internet capability
might not have been working, the forensic and testimonial evidence contradicted
Shelabarger’s claim that the laptop was almost completely inoperable.

                                         -7-
matters sufficiently material to constitute perjury. In light of the deference due to the
district court’s factual findings and the substantial quantity of evidence contradicting
the statements Shelabarger made under oath, the district court did not err in applying
the 2-level enhancement for obstruction of justice.

      The judgment is affirmed.
                      _____________________________




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