                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-4015
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                    Joseph Vanhorn

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                      Appeal from United States District Court
                    for the Western District of Missouri - Joplin
                                  ____________

                           Submitted: November 22, 2013
                              Filed: January 10, 2014
                                  ____________

Before BENTON, BEAM, and SHEPHERD, Circuit Judges.
                           ____________

BENTON, Circuit Judge.


       Joseph A. Vanhorn was found guilty of sexual exploitation of a minor in
violation of 18 U.S.C. § 2251(a) and 2251(e). The district court1 sentenced him to 220
months’ imprisonment. He appeals, arguing the district court misinterpreted the word

      1
        The Honorable Richard E. Dorr, late a United States District Court Judge
for the Western District of Missouri.
“uses” in 18 U.S.C. § 2251(a), abused its discretion in sentencing him, and imposed
a sentence violating the Eighth Amendment. Having jurisdiction under 28 U.S.C. §
1291, this court affirms.

                                          I.

      This court reviews de novo issues of statutory construction. United States v.
Sutton, 625 F.3d 526, 528 (8th Cir. 2010), citing United States v. Barraza, 576 F.3d
798, 806 (8th Cir. 2009). Vanhorn argues that the district court gave an overly broad
meaning to the word “uses” in 18 U.S.C. § 2251(a):

      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
      as provided under subsection (e) . . . .

Vanhorn photographed the minor victim in sexually explicit positions. The “use”
component is “fully satisfied for the purposes of the child pornography statute if a
child is photographed in order to create pornography.” United States v. Fadl, 498
F.3d 862, 866 (8th Cir. 2007), quoting United States v. Sirois, 87 F.3d 34, 41 (2d Cir.
1996). Vanhorn claims that this interpretation of the word “uses” is superseded by the
Supreme Court’s later analysis in United States v. Williams, 553 U.S. 285, 294-95
(2008).

      In Williams, the Supreme Court examined for overbreadth a related statute, 18
U.S.C. § 2252A(a)(3)(B):

      Any person who . . . knowingly . . . advertises, promotes, presents,
      distributes, or solicits through the mails, or using any means or facility
      of interstate or foreign commerce . . . an obscene visual depiction of a
      minor engaging in sexually explicit conduct.



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The Supreme Court concluded that the words “promotes” and “presents” should be
narrowly interpreted. Williams, 553 U.S. at 294-95.

      Vanhorn believes that the Supreme Court would similarly limit “uses” in §
2251(a). However, a year after Williams, this court reaffirmed Fadl’s interpretation
of “uses”: “A defendant ‘uses’ a minor for purposes of § 2251(a) if he photographs
the minor engaging in sexually explicit conduct to create a visual depiction of such
conduct.” United States v. McCloud, 590 F.3d 560, 566 (8th Cir. 2009). This panel
is bound by the McCloud decision. Brock v. Astrue, 674 F.3d 1062, 1065 (8th Cir.
2012).

      The district court properly interpreted the word “uses” in 18 U.S.C § 2251(a),
correctly overruling Vanhorn’s motion for a directed verdict.

                                         II.

       Vanhorn objects to the reasonableness of the 220-month sentence, alleging the
district court did not adequately and fully consider the criteria in 18 U.S.C. § 3553.

       Vanhorn does not allege a procedural error, so this court considers only the
substantive reasonableness of the sentence, under an abuse-of-discretion standard.
See Gall v. United States, 552 U.S. 38, 51 (2007). Substantive reasonableness
depends on “the totality of the circumstances, including the extent of any variance
from the Guidelines range.” United States v. Woodard, 675 F.3d 1147, 1151 (8th Cir.
2012), quoting United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en
banc). Substantive review is “narrow and deferential; it will be the unusual case when
we reverse a district court sentence—whether within, above, or below the applicable
Guidelines range—as substantively unreasonable.” United States v. French, 719 F.3d
1002, 1009 (8th Cir. 2013), quoting United States v. Kelley, 652 F.3d 915, 918 (8th
Cir. 2011). An abuse of discretion occurs if:

                                         -3-
      (1) a court fails to consider a relevant factor that should have received
      significant weight; (2) a court gives significant weight to an improper or
      irrelevant factor; or (3) a court considers only the appropriate factors but
      in weighing those factors commits a clear error of judgment.

United States v. Garcia, 512 F.3d 1004, 1006 (8th Cir. 2008), quoting United States
v. Haack, 403 F.3d 997, 1004 (8th Cir. 2005). The district court “need not
specifically respond to every argument made by the defendant, or mechanically recite
each § 3553(a) factor.” French, 719 F.3d at 1007, quoting United States v. Struzik,
572 F.3d 484, 487 (8th Cir. 2009).

        The district court here considered the § 3553 factors and varied downward from
the Guidelines range of 262 to 327 months, sentencing Vanhorn to 220 months. The
district court chose a below-Guidelines sentence due to Vanhorn’s advanced age and
lack of criminal history. Addressing his medical condition, the court recommended
a full physical examination and evaluation, and assignment to an institution for sex-
offender treatment. Ultimately, the court did not sentence Vanhorn to the statutory
minimum because of the severity of his offense, the creation and production of child
pornography that psychologically damages the minor victim.

       Because the district court considered and properly weighed the relevant factors,
the sentence is not substantively unreasonable. See United States v. Stults, 575 F.3d
834, 849 (8th Cir. 2009) (“[T]he district court adequately explained why it was
sentencing [the defendant] below the applicable Guidelines range of 188 to 235
months. Accordingly, we hold that a sentence of 144 months’ imprisonment is not
substantively unreasonable.”).

                                          III.

      Vanhorn asserts that his sentence is cruel and unusual punishment. This court
reviews Eighth Amendment challenges de novo. United States v. Capps, 716 F.3d
494, 498 (8th Cir. 2013).


                                          -4-
       Vanhorn’s below-Guidelines sentence is 40 months above the mandatory
minimum of 15 years. A sentence below the Guidelines range, but above the
mandatory minimum, does not violate the Eighth Amendment. Cf. United States v.
Montgomery, 701 F.3d 1218, 1224 (8th Cir. 2012) (sentence at bottom of range, but
above mandatory minimum, does not violate the Eighth Amendment). See also
United States v. McDade, 399 Fed. Appx. 520, 524-25 (11th Cir. 2010) (holding a
below-Guidelines, above-statutory-minimum, 240-month sentence for violating 18
U.S.C. § 2251(a) did not meet the threshold of gross disproportionality); United States
v. Davis, 306 Fed. Appx. 102, 104 (5th Cir. 2009) (holding a 200-month sentence for
a violation of 18 U.S.C. § 2251(a) was not “grossly disproportionate to the offense,”
though it exceeded the mandatory minimum by 20 months); United States v. Nichols,
527 Fed. Appx. 344, 349 (6th Cir. 2013) (finding a below-Guidelines, 600-month
sentence for violations of 18 U.S.C. §§ 2251 and 2252A was not grossly
disproportionate to the offense).

       Vanhorn’s sentence is within the statutory range of “not less than 15 years nor
more than 30 years.” 18 U.S.C. § 2251(e). A sentence within the statutory range is
“generally not reviewable by an appellate court.” United States v. Collins, 340 F.3d
672, 679 (8th Cir. 2003), citing United States v. Richard, 872 F.2d 253, 255 (8th Cir.
1989). This court has never held a sentence within the statutory range to violate the
Eighth Amendment. United States v. Neadeau, 639 F.3d 453, 456 (8th Cir. 2011),
citing Collins, 340 F.3d at 680. This is not “the rare case in which a threshold
comparison of the crime committed and the sentence imposed leads to an inference
of gross disproportionality.” United States v. Spires, 628 F.3d 1049, 1054 (8th Cir.
2011). See also United States v. Patten, 664 F.3d 247, 252 (8th Cir. 2011) (holding
a 480-month sentence for violation of 18 U.S.C. §§ 2251(a) and 2252A did not violate
the Eighth Amendment, though the sentence was 115 months above the high end of
the Guidelines range); cf. United States v. Paton, 535 F.3d 829, 837-38 (8th Cir.
2008) (holding a life sentence under 18 U.S.C. § 2251(a) for a repeat offender did not
violate the Eighth Amendment).

                                         -5-
      Because nothing in the record indicates that the sentence is grossly
disproportionate to his crime, Vanhorn’s sentence does not violate the Eighth
Amendment.

                                *******

     The judgment is affirmed.
                     ______________________________




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