                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-2887
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Southern District of Iowa.
Matthew Powills,                        *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: June 10, 2008
                                Filed: August 12, 2008
                                 ___________

Before MURPHY, BYE, and SHEPHERD, Circuit Judges.
                           ___________

SHEPHERD, Circuit Judge.

      Defendant Matthew Powills pled guilty to knowingly receiving child
pornography, 18 U.S.C. § 2252(a)(2), and knowingly possessing child pornography,
18 U.S.C. § 2252(a)(4)(B). The Defendant objects to the district court’s1 sentence of
262 months imprisonment, with 180 months of the sentence to run consecutively to
an undischarged state sentence. We affirm.




      1
        The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa.
      Inquiry into the Defendant’s activities began in November of 2004 when the
Coralville, Iowa Police Department received a report that the Defendant had sexually
abused his stepdaughter. The Defendant has been HIV positive since 1996 or earlier.
The police substantiated the allegations, and the State of Iowa charged the Defendant
with eight counts of sexual abuse in the second degree and one count of criminal
transmission of HIV. He pled guilty to two of the sexual abuse counts and the HIV
transmission count; the State dismissed the other charges. The Defendant was
sentenced to 25 years imprisonment on each count, to be served concurrently. He is
currently in the custody of the Iowa Department of Corrections.

      As part of their investigation, the Coralville police seized two computers and
133 compact discs from the Defendant’s home. After discovering child pornography
on some of the discs, the matter was referred to the Federal Bureau of Investigation.
On the computers, the FBI found more than 1,300 images of prepubescent and
juvenile females posing nude and engaging in sexual acts; at least 268 of the images
had been identified from past child exploitation cases. A grand jury indicted the
Defendant on charges of receiving child pornography, possession of child
pornography, and forfeiture of all property used or intended to be used in the
commission of the offense. 18 U.S.C. §§ 2252(a)(2), (4)(B), 2253. The Defendant
pled guilty to the charges but did not enter into a plea agreement with the
Government.

      The United States Probation Office prepared an extensive Presentence
Investigation Report (PSR) detailing the Defendant’s crimes and sexual history.
According to the PSR, the Defendant is a sexual deviant, with proclivities toward
pedophilia, incest, bestiality, exhibitionism, voyeurism, and child pornography. The
Defendant had molested at least two underage girls, including his stepdaughter, on
multiple occasions. He habitually failed to disclose his HIV status to consensual
sexual partners, other than his wife. In graphic detail, the PSR described a number of
the images and videos seized from the Defendant’s computers and discs, which

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depicted themes of incest, group sex, urination, bestiality, and child rape. Only a
small portion of the materials from the seized compact discs were reviewed.

       The PSR initially calculated that the Defendant’s crime warranted a total
offense level 38 and a criminal history category III, resulting in a Guidelines range of
292 to 365 months in prison. This calculation was partially the result of a five-level
enhancement for engaging in a pattern of activity involving the sexual abuse or
exploitation of a minor. United States Sentencing Commission, Guidelines Manual,
§2G2.2(b)(5) (Nov. 2006). The Probation Office also recommended the denial of an
adjustment for the acceptance of responsibility under Guidelines section 3E1.1. The
Defendant objected to the denial of the section 3E1.1 adjustment but not the section
2G2.2(b)(5) enhancement. The Government requested that the PSR be clarified to
reflect that under USSG §5G1.3(c), the sentence for the offense may be imposed to
run concurrently, partially concurrently, or consecutively to the prior undischarged
term of imprisonment, and that neither section 5G1.3(a) nor (b) apply. The Defendant
did not dispute this clarification.

       Prior to the sentencing hearing, the Defendant and the Government agreed to
jointly recommend that the Defendant be granted full credit for acceptance of
responsibility, thus reducing his total offense level to 35 and his advisory Guidelines
range to 210 to 262 months. They jointly recommended that the district court impose
a total sentence of 262 months, with 151 months to run consecutively to the
Defendant’s undischarged State sentence.

       At the sentencing hearing, the district court accepted the agreement with respect
to the acceptance of responsibility adjustment. It calculated a total offense level of 35
and a criminal history category III, yielding a Guidelines range of 210 to 262 months
imprisonment. The court remarked that it had received and reviewed the PSR in its
entirety and also reviewed the Defendant’s sentencing memoranda and letters



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submitted on his behalf. When asked if there were any factual inaccuracies in the PSR
that needed to be resolved, the Defendant’s counsel responded:

      None other than what were identified . . . but I don’t believe any of those
      would affect the Sentencing Guideline[s] range other than the acceptance
      of responsibility and the parties have reached an agreement for [a] joint
      sentencing recommendation. I think that would dispose of all the things
      in the objection letter.

The Defendant then gave an oral statement of considerable length.

      Before pronouncing the sentence, the court stated:

      I have considered the nature and circumstances of this offense and the
      history and characteristics of this defendant. I have considered, of
      course, as we all have, the seriousness of this offense. These matters are
      so serious that it was exceedingly difficult to read the Presentence
      Report. I couldn’t—I couldn’t read the whole thing at one time. I would
      put it down and was just terribly disturbed just by reading it.

After discussing some of its reasoning for imposing the sentence, the court explained
that:

      It is important to note the interplay between this sentence and the
      sentence that Mr. Powills has already received in state court and
      specifically there is one significant sentencing enhancement here,
      2G2.2(b)(5) that enhances the sentence here and is also the basis for this
      state court criminal prosecution and the sentence that he received there
      and so the parties have appropriately agreed that the large portion and
      not all of the sentence should be served consecutively to the sentence of
      imprisonment in state court.

The district court then sentenced the Defendant to a term of 240 months on the first
count, 120 months on the second count, with 22 months of the second count to be
served consecutively to the term on the first count for a total of 262 months. Referring

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to USSG §5G1.3, the court directed that 180 of the 262 months run consecutively to
the undischarged state sentence. As a result, the Defendant will serve 29 months
longer than the joint recommendation.

       In this appeal, the Defendant argues that the district court misapplied USSG §
5G1.3(b) and that the sentence is unreasonable. Section 5G1.3(b) provides that, if a
term of imprisonment is relevant conduct to the offense of conviction under section
1B1.3 subsections (a)(1), (a)(2), or (a)(3), and was the basis for an offense level
enhancement, then the sentence should be imposed to run concurrently to the
remainder of the undischarged term of imprisonment. Contrary to the Defendant’s
assertions, however, the district court did not purport to apply section 5G1.3(b). The
PSR specifies that section 5G1.3(c) applies, and the “pattern of activity involving the
sexual abuse or exploitation of a minor,” see USSG §2G2.2(b)(5), is designated in the
PSR as “Offense Behavior Not Part of Relevant Conduct.” The Defendant did not
object to this designation.

       We are not persuaded that the PSR or the district court treated the Defendant’s
State convictions (for sexual abuse in the second degree and criminal transmission of
HIV) as relevant conduct to his federal convictions for receiving and possessing child
pornography. The district court appropriately applied section 5G1.3(c), and imposed
a sentence that was “partially concurrent[] . . . to the prior undischarged term of
imprisonment to achieve a reasonable punishment for the instant offense.” USSG
§5G1.3(c).

       Nor are we persuaded by the Defendant’s argument that his sentence is
unreasonable. The district court ordered the Defendant to serve 180 months of his
262-month sentence consecutive to his State court sentence, instead of following the
parties’ joint recommendation of 151 months served consecutively. This resulted in
a 29-month increase in the number of months ordered consecutive to the State
sentence. The Defendant asserts that “the court failed to articulate independent

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reasons” for declining to follow the joint recommendation of the parties. The
argument is without merit.

       A district court is not required to recite each of the sentencing factors under 18
U.S.C. § 3553(a), as long as the record makes clear that they were considered. United
States v. Hernandez, 518 F.3d 613, 616 (8th Cir. 2008); see Rita v. United States, 127
S. Ct. 2456, 2468-69 (2007). Here, however, the record shows the district court
provided a thorough explanation of the reasons for its sentence. To quote the district
court, it referenced the “nature and circumstances of the offense and the history and
characteristics of this defendant,” see 18 U.S.C. § 3553(a)(1), “the seriousness of this
offense,” see 18 U.S.C. § 3553(a)(2)(A), “the question of just punishment and the
need for deterrence to criminal conduct,” see 18 U.S.C. § 3553(a)(2)(B), “the need to
protect the public from further crimes from this defendant,” see 18 U.S.C. §
3553(a)(2)(C), and “the sentencing options that are available,” see 18 U.S.C. §
3553(a)(3). The court considered the Sentencing Guidelines, section 3553(a)(4), and
“the need to avoid unwarranted sentencing disparities among defendants who have
been found guilty of similar conduct,” see 18 U.S.C. § 3553(a)(6). Furthermore, we
presume that “a sentence resulting from a proper application of the advisory
guidelines[,]” such as the sentence here, “is reasonable.” United States v. Clay, 524
F.3d 877, 878 (8th Cir. 2008).

       We are satisfied that the Defendant’s sentencing was a reasoned process and
that the district judge appropriately considered “the individual case and the individual
defendant before him . . . .” Rita, 127 S. Ct. at 2469. Accordingly, we affirm the
decision of the district court.
                          ______________________________




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