                                                                                  FILED
                                                                      United States Court of Appeals
                                       PUBLISH                                Tenth Circuit

                      UNITED STATES COURT OF APPEALS                          April 11, 2017

                                                                           Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                             Clerk of Court
                         _________________________________

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                           No. 16-3058

KENNETH THEIS,

      Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                              for the District of Kansas
                       (D.C. No. 2:14-CR-20072-JAR-JPO-1)
                       _________________________________

Submitted on the briefs:*

John Jenab, Jenab Law Firm, P.A., Olathe, Kansas, for Defendant-Appellant.

Thomas E. Beall, Acting United States Attorney, and Carrie N. Capwell, Assistant United
States Attorney, Office of the United States Attorney, Kansas City, Kansas, for Plaintiff-
Appellee.
                        _________________________________

Before BRISCOE, LUCERO, and HARTZ, Circuit Judges.
                   _________________________________

LUCERO, Circuit Judge.
                    _________________________________


      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument.
       Kenneth Theis appeals his conviction and sentence for attempted sexual

exploitation of a child. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                             I

       Theis used hidden cell phones to secretly record his girlfriend’s eleven-year-

old daughter while she showered and used the toilet. He transferred the recordings to

his computer and created still images, some of which focused on her genital and

pubic area. As a result, Theis was indicted on two counts of attempted sexual

exploitation of a child in violation of 18 U.S.C. § 2251(a) & (e), which provides that

any person “who employs, uses, persuades, induces, entices, or coerces any minor to

engage in . . . any sexually explicit conduct for the purpose of producing any visual

depiction of such conduct . . . shall be punished . . . .” § 2251(a).

       The operative facts were undisputed. However, Theis filed a motion to

dismiss the indictment arguing the facts were insufficient to establish an offense

under the statute. He asserted that § 2251(a) requires a causal, interactive

relationship between the defendant and the minor, and that his conduct—which

amounted to mere voyeurism—was insufficient to establish a violation of the statute.

The district court denied the motion. After a bench trial, the court denied Theis’

motion for judgment of acquittal, found him guilty of both charges, and sentenced

him to 292 months in prison. Theis timely appealed his conviction and sentence,

arguing: (1) the district court erred by denying his motion to dismiss the indictment;

(2) there was insufficient evidence to support his conviction; and (3) the district court



                                             2
committed plain error by denying him a meaningful opportunity to allocute. We

reject these arguments and affirm.

                                           II

      Theis first argues that the district court erred by denying his motion to dismiss

the indictment. A district court may dismiss an indictment if the allegations are

insufficient to establish the charged offense. United States v. Todd, 446 F.3d 1062,

1068 (10th Cir. 2006). In considering a motion to dismiss, the court generally does

not examine the evidence. Id. However, it may consider undisputed facts if the

government does not object. Id. Under this exception, the court may dismiss the

indictment if the “undisputed evidence shows that, as a matter of law, the [d]efendant

could not have committed the offense for which he was indicted.” Id. “We generally

review a district court’s denial of a motion to dismiss a criminal indictment for abuse

of discretion, but review any statutory interpretation issues involved in the ruling

de novo.” United States v. Berres, 777 F.3d 1083, 1089 (10th Cir. 2015).

      According to Theis, the undisputed evidence showed he “secretly videotape[d]

the unaware minor while she performed activities over which he had no control or

influence.” He argues this does not satisfy the “uses” element of § 2251(a), which he

claims requires “a causal relationship between the defendant and the minor’s sexually

explicit conduct.” We conclude the statute contains no such requirement.

      To determine the meaning of the term “uses” in § 2251(a), we look first to the

language of the statute. See United States v. Figueroa-Labrada, 780 F.3d 1294, 1298

(10th Cir. 2015). Section 2251(a) punishes any person “who employs, uses,

                                           3
persuades, induces, entices, or coerces any minor to engage in . . . any sexually

explicit conduct . . . .” (emphasis added). The statute does not define “uses,” so we

give the word its ordinary meaning. See Nat’l Credit Union Admin. Bd. v. Nomura

Home Equity Loan, Inc., 764 F.3d 1199, 1227 (10th Cir. 2014). In doing so, we must

also consider both the specific context in which the word is used and the broader

context of the statute as a whole. Toomer v. City Cab, 443 F.3d 1191, 1194

(10th Cir. 2006).

       Webster’s Dictionary defines “use” as, among other things, to “avail oneself

of” or “carry out a purpose or action by means of.” Webster’s New Collegiate

Dictionary 1288 (1976); see also Fish v. Kobach, 840 F.3d 710, 733 (10th Cir. 2016)

(“We may consult a dictionary to determine the plain meaning of a term.”). Neither

of these definitions would require a causal relationship between the defendant and the

minor’s sexually explicit conduct. Nor does the statutory context. Section 2251(a)

describes a variety of ways a defendant might produce sexually explicit depictions of

minors. By including the term “uses,” the statute “reaches a defendant’s active

involvement in producing the depiction even if the interpersonal dynamics between

the defendant and the depicted minor are unknown.” Ortiz-Graulau v. United States,

756 F.3d 12, 19 (1st Cir. 2014). Accordingly,

      the term “use” in the statute permits the conviction of a defendant who
      was actively and directly involved in producing a sexually explicit
      depiction of a minor even in the absence of a complaining witness or
      even without being able to identify the specific minor. In contrast, the
      terms employ, persuade, induce, entice, and coerce reach various types
      of external pressure that a defendant might apply on a minor to get him
      or her to engage in sexually explicit conduct.

                                           4
Id. This interpretation of the statute gives effect to every word. See Toomer,

443 F.3d at 1194 (“When construing a statute, we should give effect, if possible, to

every clause and word.”). And it is consistent with Congress’ intent to provide “a

broad ban on the production of child pornography . . . aimed to prohibit the varied

means by which an individual might actively create it.” Ortiz-Graulau, 756 F.3d

at 19.

         Significantly, nearly every circuit to address this issue has recognized that the

“uses” element “is met when a defendant intentionally films or photographs a minor’s

sexually explicit conduct.” Id. at 18; see United States v. Wright, 774 F.3d 1085,

1089 (6th Cir. 2014); United States v. Vanhorn, 740 F.3d 1166, 1168 (8th Cir. 2014);

United States v. Finley, 726 F.3d 483, 495 (3d Cir. 2013) (“[A] perpetrator can ‘use’

a minor to engage in sexually explicit conduct without the minor’s conscious or

active participation.”); United States v. Sirois, 87 F.3d 34, 41 (2d Cir. 1996) (stating

that the “use” element “is fully satisfied . . . if a child is photographed in order to

create pornography”). But see United States v. Laursen, 847 F.3d 1026, 1032-33

(9th Cir. 2017) (concluding there was sufficient evidence to satisfy the “use” element

when the defendant directed the minor’s actions in producing sexually explicit

photos, but recognizing that other circuits have “broadly interpreted the ‘use’ element

of the statute”). And the Sixth Circuit specifically rejected the argument Theis makes

in this case—that the government must prove the defendant caused the minor’s

conduct. Wright, 774 F.3d at 1091.


                                              5
      In sum, neither the statutory text nor persuasive authority from other circuits

supports Theis’ argument that the “uses” element of § 2251(a) requires a causal

relationship between a defendant’s actions and the minor’s sexually explicit conduct.

Thus, the district court did not err by denying his motion to dismiss.

                                          III

      Relying on the same argument regarding the “uses” element of § 2251(a),

Theis also claims the evidence was insufficient to support his conviction. But he

appears to concede that the evidence was sufficient if the statute does not require a

causal relationship between his actions and the minor’s conduct. Because we hold

that § 2251(a) contains no such requirement, we reject his argument that his

conviction was based on insufficient evidence.

                                          IV

      Finally, Theis argues that the district court committed plain error at the

sentencing hearing by inviting him to speak on his own behalf only after announcing

its proposed sentence. Before imposing a sentence, the district court must “address

the defendant personally in order to permit the defendant to speak or present any

information to mitigate the sentence.” Fed. R. Crim. P. 32(i)(4)(A)(ii). A court

violates this right to allocute when it definitively announces the defendant’s sentence

before giving him an opportunity to speak, and fails to communicate to the defendant

that it will genuinely reconsider the sentence in light of his remarks. United States v.

Landeros-Lopez, 615 F.3d 1260, 1268 (10th Cir. 2010).



                                           6
      At the hearing, the district court first heard argument by Theis’ attorney. The

court said it would allow “further allocution, as well as any statement Mr. Theis

would like to make to the [c]ourt” after it “announced proposed findings of fact and

[a] tentative sentence.” Theis did not object to this procedure. After the

prosecution’s argument, the court gave a detailed account of its “proposed findings of

fact and . . . tentative sentence” and described the terms of imprisonment it

“intend[ed] to impose.” At one point, the court said it “ha[d] decided” on a particular

term of imprisonment and supervised release, but it subsequently asked whether the

prosecution or defense had objections “to the sentence as tentatively announced.”

The court then invited Theis “to address the [c]ourt directly [on his] own behalf”

before it “impose[d] [the] final sentence.” Theis read a lengthy letter in which he

apologized to the victim and her family and highlighted mitigating information. The

court thanked Theis for his statement and specifically responded to some of his

comments. Then the court imposed the sentence it had previously described.

      Because Theis did not object to the district court’s sentencing procedure, we

review for plain error. See United States v. Bustamante-Conchas, ___ F.3d ____,

No. 15-2025, 2017 WL 838216, at *4 (10th Cir. March 3, 2017). This standard of

review requires Theis to show “(1) error, (2) that is plain, which (3) affects [his]

substantial rights, and which (4) seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” Id. (quotation omitted). We do not address the

first three prongs because we conclude Theis has failed to satisfy the fourth.



                                            7
      An allocution error does not seriously affect the fairness, integrity, or public

reputation of the proceeding if the defendant had “a meaningful opportunity to

address the court and present mitigating circumstances.” Id. at *9. A review of the

sentencing hearing as a whole convinces us Theis had such an opportunity. See id. at

*8 (“In considering the fourth prong [of the plain error test], the seriousness of the

error must be examined in the context of the case as a whole.” (quotation omitted)).

      First, the district court did not definitively announce Theis’ sentence before

giving him an opportunity to speak. Instead, it repeatedly characterized its proposed

sentence as “tentative” and referred to the conditions it “intended” to impose. These

indecisive statements bear little resemblance to the conclusive pronouncements in

Landeros-Lopez, in which the court definitively stated: “[I]t is and will be the

judgment of this Court that the defendant . . . is hereby committed to the custody of

the Bureau of Prisons” and “[u]pon release from imprisonment this defendant shall be

placed on supervised release . . . .” 615 F.3d at 1265 (second emphasis added).

      Second, even if some of the district court’s language suggested it had made up

its mind, there is no indication that Theis thought so—he made a lengthy argument

encouraging the court to impose a more lenient sentence. See United States v. Frost,

684 F.3d 963, 980 (10th Cir. 2012) (“[E]ven if the court’s statements in theory could

have effectively communicated that his sentence had already been determined, [the

defendant’s] conduct shows that the court’s statements did not in fact communicate

that to him.” (alteration, citation, and quotation omitted)), overruled on other grounds

by Bustamante-Conchas, 2017 WL 838216, at *10.

                                            8
      Third, the district court’s response to Theis’ argument suggests it considered

his comments in arriving at the sentence ultimately imposed. See United States v.

Mendoza-Lopez, 669 F.3d 1148, 1153 (10th Cir. 2012) (“[T]he record shows the

court considered [the defendant’s] mitigating information in arriving at [his] ultimate

sentence . . . .”), overruled on other grounds by Bustamante-Conchas, 2017 WL

838216, at *10.

      Because Theis had a meaningful opportunity to address the district court and

present mitigating circumstances, he has not shown that the court’s failure to invite

him to speak sooner amounted to plain error.

                                          V

             Theis’ conviction and sentence are AFFIRMED.




                                           9
