                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 15-2500
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                 Corey Lee Steffen

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

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

                          Submitted: December 18, 2015
                              Filed: April 8, 2016
                                 ____________

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

LOKEN, Circuit Judge.

      Corey Lee Steffen pleaded guilty to receipt of child pornography in violation
of 18 U.S.C. § 2252(a)(2). At sentencing, the district court1 applied an advisory
guidelines cross reference because the offense involved “causing . . . a minor to


      1
      The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa.
engage in sexually explicit conduct for the purpose of producing a visual depiction
of such conduct.” U.S.S.G. § 2G2.2(c)(1). The resulting advisory guidelines range
was 324 to 405 months in prison. After considering the sentencing factors in 18
U.S.C. § 3553(a), the district court sentenced Steffen to 240 months, the statutory
maximum sentence for a violation of 18 U.S.C.§ 2252(a)(2). Steffen appeals, arguing
the district court violated his Fifth and Sixth Amendment rights as construed in
Apprendi v. New Jersey, 530 U.S. 466 (2000), and Jones v. United States, 526 U.S.
227 (1999), when it applied the cross reference based upon facts that were neither
found by a jury nor admitted in his guilty plea. We affirm.

       In 2012, a police officer investigating child pornography on the internet entered
a public library and confronted Steffen when he concealed his laptop screen. Steffen
admitted there was child pornography on the laptop; a forensic analysis of Steffen’s
laptop and mobile phone revealed 230 images and 80 videos of pornography
involving minors. Six videos and several images captured the thirty-two-year-old
Steffen engaging in sexual intercourse with a victim, A.M.W., who was fourteen
years old at the time. Indicted for receipt and possession of child pornography in
violation of 18 U.S.C. §§ 2252(a)(2) and 2252(a)(4)(B), Steffen pleaded guilty to the
receipt offense, acknowledging that the statutory range of punishment for that offense
is five to twenty years in prison. § 2252(b)(1).

       Prior to sentencing, the Presentence Investigation Report (“PSR”) described
in detail Steffen’s two-year sexual relationship with A.M.W. during which he
recorded, without her consent, multiple videos of their sexual conduct. Steffen
emailed the videos to A.M.W. and to a friend in Las Vegas, Nevada, telling A.M.W.
that he could make money through online distribution of the material. The PSR stated
that § 2G2.2 of the guidelines governed Steffen’s offense of conviction but
recommended that the court apply the cross reference to § 2G2.1 because his offense
involved producing child pornography. Steffen objected to the cross reference and
to other recommended guidelines enhancements but advised the court at sentencing

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there were no fact disputes that required the government to present evidence. After
hearing argument, the district court adopted the facts in the PSR and overruled
Steffen’s objection to the cross-reference to § 2G2.1, which increased the base
offense level from 22 to 32. Together with other enhancements and a decrease for
acceptance of responsibility, this resulted in a total offense level of 41 and an
advisory guidelines range of 324 to 405 months in prison.

       Steffen argues the district court erred by applying the cross reference based on
a finding that his offense conduct included producing child pornography because
production of child pornography is a more serious federal offense, see 18 U.S.C.
§ 2251(a), (e), and its essential elements were neither found by a jury nor admitted
in his guilty plea. Therefore, Steffen contends, the sentence violated his
constitutional right to have “any fact [other than a prior conviction] that increases the
penalty for a crime beyond the prescribed statutory maximum . . . submitted to a jury,
and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490.2

      The Sentencing Guidelines provide that a defendant’s base offense level is
determined on the basis of his relevant conduct, which includes “all acts and
omissions . . . that occurred during the commission of the offense of conviction.”
U.S.S.G. § 1B1.3(a)(1)(A). “Conduct that is not formally charged or is not an
element of the offense of conviction may enter into the determination of the
applicable guideline sentencing range.” Id., comment. (backg’d.). Early in the
mandatory guidelines era, our en banc court held that it was constitutionally
permissible for the mandatory Guidelines to “allow relevant conduct, including
uncharged conduct . . . to determine a sentence within the statutory maximum” of the

      2
        The government argues we should review this contention only for plain error
because, in the district court, Steffen did not object to use of the cross reference on
this ground. See United States v. Pirani, 406 F.3d 543, 549 (8th Cir.) (en banc), cert.
denied, 546 U.S. 909 (2005). We need not address this issue because we conclude
that Steffen’s contention is without merit.

                                          -3-
offense of conviction. United States v. Galloway, 976 F.2d 414, 424 (8th Cir. 1992)
(en banc), cert. denied, 507 U.S. 974 (1993).

       The Supreme Court subsequently held that the mandatory Guidelines violated
Apprendi’s constitutional principle in United States v. Booker, 543 U.S. 220 (2005),
a landmark decision that put in place an advisory guidelines regime the district court
applied in sentencing Steffen. The constitutional issue as framed by Justice Stevens
in an opinion for the Court in Booker is critical to resolving the issue Steffen raises:

             If the Guidelines as currently written could be read as merely
      advisory provisions that recommended, rather than required, the
      selection of particular sentences in response to differing sets of facts,
      their use would not implicate the Sixth Amendment. We have never
      doubted the authority of a judge to exercise broad discretion in imposing
      a sentence within a statutory range.

Id. at 233; accord Alleyene v. United States, 133 S. Ct. 2151, 2163 (2013).

       In this case, Steffen does not deny that the facts on which the district court
based its application of the cross reference -- Steffen secretly making pornographic
videos of his sexual relations with a minor -- were relevant conduct in determining
his advisory guidelines sentencing range. He also concedes, as he must, that the
statutory maximum sentence was not increased by these findings, and that he was in
fact sentenced within the authorized statutory range. Thus, the only effect of the
findings was to influence the district court’s exercise of its discretion to impose a
sentence within that statutory range. This is a constitutionally permissible effect
under Apprendi as applied in Booker. Steffen argues that the facts warranting the
cross reference were elements of a separate crime, namely, the production of child
pornography. Even if true, that simply means the district court determined his
advisory guidelines range based on uncharged relevant conduct, as § 1B1.3 of the
guidelines requires and the Sixth Amendment permits. A fact that “influences

                                          -4-
judicial discretion” but does not “alter[] the legally prescribed punishment so as to
aggravate it,” need not be found by a jury. Alleyne, 133 S. Ct. at 2162-63.

       Steffen argues that the cross reference established a guidelines range above the
statutory maximum, “creat[ing] a situation in which anything less than the statutory
maximum is extraordinary.” But the same is true of any adverse sentencing factor
that persuades a district court that defendant’s offense conduct warrants punishment
at least as severe as the statutory maximum sentence. “[T]he Sixth Amendment does
not govern that element of sentencing.” Alleyne, 133 S. Ct. at 2161 n.2; see United
States v. Jenkins, 792 F.3d 931, 935-36 (8th Cir. 2015) (cross reference resulted in
guidelines range greater than the statutory maximum); United States v. Davis, 753
F.3d 1361, 1361-62 (8th Cir.) (same), cert. denied, 135 S. Ct. 393 (2014).

        Steffen’s reliance on Jones v. United States is misplaced because that case
turned on a question of statutory interpretation. 526 U.S. at 229. Jones was
sentenced under a subsection of the federal carjacking statute that increased the
statutory maximum sentence. See 18 U.S.C. § 2119(2). The Court held that the facts
needed to impose that greater sentence were elements of an independent offense that
must be found by a jury, not sentencing factors that may be found by the sentencing
judge by a preponderance of the evidence. Jones, 526 U.S. at 252; see United States
v. O’Brien, 560 U.S. 218, 224-26 (2010). Here, Steffen pleaded guilty to violating
18 U.S.C. § 2252(a)(2) and was sentenced to its statutory maximum punishment. In
exercising its sentencing discretion, the district court considered uncharged conduct,
that is, facts that undoubtedly could have supported additional criminal charges. But
under the advisory guidelines as construed in Booker, the Sixth Amendment did not
require that the court determine the additional offenses that could have been charged
and then submit the factual elements of those offenses to a jury.

      The judgment of the district court is affirmed.
                     ______________________________

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