                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 05-3346
                                     ___________

United States of America,                 *
                                          *
             Appellee,                    *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * Eastern District of Missouri.
James A. Kiel,                            *
                                          *
             Appellant.                   *
                                     ___________

                               Submitted: March 14, 2006
                                  Filed: July 20, 2006 (corrected 7/21/06)
                                   ___________

Before ARNOLD, JOHN R. GIBSON, and SMITH, Circuit Judges.
                           ___________

SMITH, Circuit Judge.

       James A. Kiel pleaded guilty to five counts of Production of Child Pornography
("Production Counts"), in violation of 18 U.S.C. § 2251(a), and one count of Felon in
Possession of a Firearm, in violation of 18 U.S.C. § 922(g)(1). At the sentencing
hearing, the district court1 found that the Production Counts should not be grouped
and that Kiel's adjusted offense level was 33. The district court added five levels based
on the number of units. The district court, therefore, set Kiel's offense level at 38 with
a criminal history Category II, yielding an advisory Guidelines range of 262 to 327

      1
       The Honorable Carol E. Jackson, Chief Judge, United States District Court for
the Eastern District of Missouri.
months' imprisonment. After holding that Kiel was not eligible for a two-level
reduction for acceptance of responsibility, the district court sentenced Kiel to 327
months' imprisonment. Kiel appeals his sentence, arguing that the district court erred
in refusing to group the Production Counts, or, in the alternative, that the district court
erred in its calculation under U.S.S.G. § 3D1.4 by adding five levels to the adjusted
offense level. In addition, Kiel argues that the district court erred in refusing to grant
him a two-level reduction for acceptance of responsibility. We affirm.

                                       I. Background
       Kiel was indicted on five counts of Production of Child Pornography, in
violation of 18 U.S.C. § 2251(a), and one count of Felon in Possession of a Firearm,
in violation of 18 U.S.C. § 922(g)(1). During Kiel's trial, the government's witnesses
described the search of Kiel's residence and the seizure of the child pornography
videotapes. The government played all five child pornography tapes Kiel produced for
the jury, as well as other tapes, to establish Kiel's pattern of using his video camera to
tape nude and seminude minor females. On the final day of trial, as the government
was winding up its case, Kiel pleaded guilty to all counts.

       In Kiel's plea agreement, he admitted to knowingly producing the five
videotapes by filming several minors while they slept at his residence. Kiel exposed
their genitals and displayed them in a lascivious manner, and, on some occasions, he
touched the minors' genitals. Kiel admitted to knowingly filming at least two females
under the age of twelve. He also admitted that two of the minor females were his
relatives.

      Kiel objected to the presentence investigation report ("PSR"), arguing that he
was entitled to a two-level offense reduction for acceptance of responsibility because
he pleaded guilty. The district court denied the reduction, finding that Kiel's
acceptance was not timely and that he did not fully admit his conduct. Kiel also
objected to the PSR's application of the grouping rules under the 2000 version of the

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United States Sentencing Guidelines because the PSR did not group the five
Production Counts. Kiel contended that, because there were only two identified
victims, the five counts should have been grouped into two groups—one for each
identified victim.

      The district court overruled the objection and held that U.S.S.G. §§ 3D1.2 and
2G2.1of the Guidelines make it clear that Production of Child Pornography offenses
are not to be grouped, stating:

      And it is also the situation where there's no dispute that there was more
      than one minor child involved. I know you dispute whether there was
      more than two. But here we're talking about two minor children involved
      in these five counts. And each of these counts involved the filming of the
      minor children, and in some of them there was also some physical
      touching of the genital areas by Mr. Kiel. And these are all separate
      events. They took place over a period of time. And I don't believe that
      these are the kinds of offenses that fall within the grouping provisions of
      the guidelines.

       The district court adopted the factual findings of the PSR. According to the
PSR, an examination of the videotapes seized at Kiel's residence revealed images of
children engaged in sexually explicit conduct. Each of the Production Counts
appeared on a separate videotape, except that the Count IV videotape showed Kiel
abusing two minor females rather than one. The PSR, therefore, recommended that
five levels be added to the base offense level of 33 for a total offense level of 38.

       Kiel objected to the PSR's addition of five levels and contended that only two
levels should have been added—one for each of the two identified victims. The
district court responded that it was "appropriate for the Probation Officer not to group
these offenses. And so I am going to overrule the defendant's objection to the
calculation of the offense level." An offense level of 38 and a criminal history
Category II yielded an advisory Guidelines range of 262 to 327 months. Consistent

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with the PSR recommendation, the district court sentenced Kiel to 327 months'
imprisonment and a five-year term of supervised release.

       After the decision in United States v. Booker, 543 U.S. 220 (2005), we granted
Kiel's motion for remand. At resentencing, the district court stated that it would rely
on the previous record including objections. The district court reiterated its previous
finding that the Guidelines range was 262 to 327 months and again sentenced Kiel to
327 months' imprisonment and a five-year term of supervised release.

                                    II. Discussion
       Kiel raises three arguments on appeal. First, Kiel argues that the district court
erred in calculating the correct Guidelines range by failing to group the Production
Counts. Second, Kiel argues that even if the district court committed no error by
refusing to group the Production Counts, the district court erred in increasing his
adjusted offense level by five levels, resulting in a total offense level of 38. Finally,
Kiel argues that the district court erred in refusing to grant him acceptance of
responsibility.

                        A. Grouping of the Production Counts
       Kiel argues that the district court erred in refusing to group the five Production
Counts together, asserting that Counts II, IV, and V involved minor child A.K. and
should be grouped together, while Count IV involved minor child P.C. and should
constitute a separate group under § 2G2.1(c)(1). Thus, Kiel asserts that the district
court should have created two groups, one for each identified victim. Based on this
grouping, Kiel argues the district court should have applied the multiple-count
adjustment under § 3D1.4, resulting in a total offense level of 35 once two levels were
added to the adjusted offense level of 33. We review de novo a district court's
interpretation and application of the Guidelines. United States v. Mathijssen, 406 F.3d
496 (8th Cir. 2005).



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      Section 2G2.1(d) of the Guidelines—"Sexual Exploitation of a Minor by
Production of Sexually Explicit Visual or Printed Material"—provides that "[i]f the
offense involved the exploitation of more than one minor, Chapter Three, Part D
(Multiple Counts) shall be applied as if the exploitation of each minor had been
contained in a separate count of conviction." Application Note 5 to § 2G2.1 then
explains:

       For the purposes of Chapter Three, Part D (Multiple Counts), each
      minor exploited is to be treated as a separate minor. Consequently,
      multiple counts involving the exploitation of different minors are not to
      be grouped together under § 3D1.2 (Groups of Closely Related Counts).
      Subsection (d)(1) directs that if the relevant conduct of an offense of
      conviction includes more than one minor being exploited, whether
      specifically cited in the count of conviction or not, such minor shall be
      treated as if contained in a separate count of conviction.

       Section 3D1.2 of the Guidelines "set[s] forth the circumstances in which counts
are to be grouped together into a single Group." Application Note 1 to U.S.S.G. §
3D1.2. Specifically excluded from the operation of this section is "Sexual Exploitation
of a Minor by Production of Sexually Explicit Visual or Printed Material" under §
2G2.1. Furthermore, § 3D1.2 "does not authorize the grouping of offenses that cannot
be considered to represent essentially one composite harm (e.g., robbery of the same
victim on different occasions involves multiple, separate instances of fear and risk of
harm, not one composite harm)." Application Note 4 to U.S.S.G. § 3D1.2.

       Therefore, considering the commentary to §§ 2G2.1 and 3D1.2, we hold that
the district court properly refused to group the Production Counts. Each time that Kiel
molested a child, he inflicted a separate and distinct harm upon that child; therefore,
his actions cannot be considered substantially the same harm for grouping purposes
under § 3D1.2.



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                       B. Increasing Offense Level by Five Units
       In the alternative, Kiel argues that if the grouping calculation is not applicable,
the district court erred in finding an adjusted offense level of 38 because the PSR
stated that there are a total of five units under § 3D1.4 and increased the adjusted
offense level by five units for a total of 38 instead of following § 3D1.4, which states
that five units would only cause an increase of four levels, for an offense level of 37
and an advisory Guidelines range of 235 to 293 months' imprisonment.

        "Under § 2G2.1, the offense level of a defendant who pleads guilty to sexual
exploitation of children . . . is determined, in part, by the number of minors exploited
in the commission of the offense. Specifically, § 2G2.1[(d)(1)] requires the sentencing
court to treat each minor exploited as though the exploitation of that minor was
contained in a separate count of conviction." United States v. Reinhart, 357 F.3d 521,
525 (5th Cir. 2004); see also United States v. MacLeod, 80 F.3d 860, 863 (3d Cir.
1996) ("Because MacLeod's offenses involved the exploitation of more than one
minor, the exploitation of each minor was treated as if it were a separate count of
conviction. These 'counts' were not grouped."). Here, Kiel pleaded guilty to five
Production Counts, but Count IV involved two children. Therefore, under § 2G2.1,
the district court was to treat Count IV as two separate counts, for a total of six counts.

       Section 3D1.4 states that the district court determines the offense level "by
taking the offense level applicable to the Group with the highest offense level and
increasing that offense level by the amount indicated. . . . " For more than five units,
the district court is to increase the defendant's offense level by five levels. U.S.S.G.
§ 3D1.4.

       Here, Kiel was charged with five Production Counts. Kiel's PSR only reflects
"one unit" for Count IV, not two units, even though Count IV involved two different
minor female children. Therefore, the PSR table only equates to five units, meaning
that, under §3D1.4, the district court should only add four levels, not five. However,

                                           -6-
when Kiel originally objected to the multiple count adjustment, the U.S. Probation
Officer replied:

      The Special Instruction found at Section 2G2.1(c) directs that if the
      offense involved more than one minor the grouping rules should be
      applied as if each minor had been contained in a separate count of
      conviction[.] Application Note 2 clarifies that multiple counts involving
      the sexual exploitation of different minors are not to be grouped
      together. Further[,] if the relevant conduct of an offense of conviction
      includes more than one minor being exploited[,] whether specifically
      cited in the count of conviction or not[,] each such minor shall be treated
      as if contained in a separate count of conviction[.]

      Therefore, the Probation Officer clarified that Count IV involved two victims,
meaning that each violation of a minor should be treated as if contained in a separate
count of conviction. Kiel concedes that Count IV involved victims A.K. and P.C.,
meaning that "Section D shall be applied as if the exploitation of each minor had been
contained in a separate count of conviction."

       Thus, while the PSR did not explicitly list two units for Count IV because
Count IV involved two minors, equating to a total of six units instead of five units, the
district court properly added five levels to Kiel's offense level.

                           C. Acceptance of Responsibility
       Kiel's final argument is that the district court erred in refusing to grant him a
two-level reduction for acceptance of responsibility because he pleaded guilty to all
six counts and truthfully admitted the conduct that comprised the offenses. We review
a district court's denial of acceptance-of-responsibility reduction for clear error.
United States v. Bell, 411 F.3d 960, 963 (8th Cir. 2005).

     Section 3E1.1 of the Guidelines states that "[i]f the defendant clearly
demonstrates acceptance of responsibility for his offense, decrease the offense level

                                          -7-
by 2 levels." To determine whether a defendant qualifies for a two-level reduction for
acceptance of responsibility, the district court may consider the following factors:



      (a) truthfully admitting the conduct comprising the offense(s) of
      conviction, and truthfully admitting or not falsely denying any additional
      relevant conduct for which the defendant is accountable under § 1B1.3
      (Relevant Conduct). Note that a defendant is not required to volunteer,
      or affirmatively admit, relevant conduct beyond the offense of conviction
      in order to obtain a reduction under subsection (a). A defendant may
      remain silent in respect to relevant conduct beyond the offense of
      conviction without affecting his ability to obtain a reduction under this
      subsection. However, a defendant who falsely denies, or frivolously
      contests, relevant conduct that the court determines to be true has acted
      in a manner inconsistent with acceptance of responsibility;
      (b) voluntary termination or withdrawal from criminal conduct or
      associations;
      (c) voluntary payment of restitution prior to adjudication of guilt;
      (d) voluntary surrender to authorities promptly after commission of the
      offense;
      (e) voluntary assistance to authorities in the recovery of the fruits and
      instrumentalities of the offense;
      (f) voluntary resignation from the office or position held during the
      commission of the offense;
      (g) post-offense rehabilitative efforts (e.g., counseling or drug
      treatment); and
      (h) the timeliness of the defendant's conduct in manifesting the
      acceptance of responsibility.

Application Note 1 to U.S.S.G. § 3E1.1.

      A two-level reduction for acceptance of responsibility does not apply "to a
defendant who puts the government to its burden of proof at trial by denying the
essential factual elements of guilt, is convicted, and only then admits guilt and
expresses remorse." Application Note 2 to U.S.S.G. § 3E1.1. In addition, "a reduction

                                          -8-
is not appropriate if the Government goes through the burden of proving its case at
trial, unless the defendant was merely ascertaining the viability of an issue unrelated
to his guilt, such as a constitutional challenge to a statute." United States v. Kendrick,
423 F.3d 803, 810 (8th Cir. 2005).

        The district court made several detailed findings regarding the application of
the § 3E1.1 factors. First, the court noted that Kiel pleaded guilty on the last day of
trial, after the government had presented the majority of its evidence, including
showing the jury the pornographic videotapes. Second, the court concluded that Kiel's
plea was not timely. Third, the court noted that Kiel only admitted to videotaping two
victims when it was apparent from the tapes that there were more than two victims.
Based on the district court's thorough analysis, we cannot say that the district court's
denial of acceptance of responsibility was clearly erroneous.

                                 III. Conclusion
      Accordingly, we affirm the judgment of the district court.
                     ______________________________




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