                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                August 29, 2012
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                  Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 12-6047
          v.                                         (W.D. Oklahoma)
 GLEN TAYLOR HERGET,                           (D.C. No. 5:11-CR-00081-F-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before MURPHY, ANDERSON, and HARTZ, Circuit Judges.


      Defendant Glen Herget pleaded guilty in the United States District Court

for the Western District of Oklahoma to receipt of child pornography, see

18 U.S.C. § 2252(a)(2), and was sentenced to 20 years’ imprisonment. He

appeals his sentence, arguing that it was both procedurally and substantively

unreasonable. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.




      *
       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
ordered submitted without oral argument. This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I.    BACKGROUND

      On September 30, 2010, a guest at a local motel told Oklahoma City police

officers that after accessing the motel’s wireless internet, she saw a file titled

“Glen’s LimeWire files” in her iTunes’ shared folder. R., Vol. 2 at 4. Inside the

file she found seven to ten additional folders with sexually explicit labels

suggesting child pornography. The officers were unable to open the files. After

discovering that only one person named Glen was staying at the motel, officers

contacted Defendant and seized his laptop after talking with him. A forensic

examiner found 13 videos and three or four photographs of child pornography on

the computer’s hard drive. The laptop also contained chat messages between

Defendant and others discussing sexually explicit and heinous acts involving

young boys. There was no direct evidence, however, that Defendant had ever

actually abused a minor.

      After being indicted on nine counts of receipt of child pornography, see

18 U.S.C. § 2252(a)(2), and one count of possession of child pornography, see id.

§ 2252A(a)(5)(B), Defendant reached an agreement with the government and

pleaded guilty to one count of receipt of child pornography. The plea agreement

provided that the government would dismiss the remaining counts and reserved to

Defendant the right to appeal a sentence above the advisory guideline range.

      The presentence investigation report (PSR) calculated Defendant’s total

offense level at 34, which included a two-level enhancement because Defendant’s

                                          -2-
offense involved distribution. See USSG § 2G2.2(b)(3)(F) (2009). Based on this

total offense level and Defendant’s criminal-history category of II, the advisory

guideline range for imprisonment was 168 to 210 months. But because Defendant

had previously been convicted of a child-pornography offense, he faced a

mandatory minimum sentence of 180 months’ imprisonment. See 18 U.S.C.

§ 2252(b)(1).

      Defendant raised an objection to the PSR’s two-level enhancement for

distribution, arguing that he had downloaded child pornography for his personal

use and not to distribute it. The objection was then litigated at the February 9,

2012, sentencing hearing. To substantiate the enhancement, Oklahoma City

detective Robert Holland, who specializes in computer forensics and had analyzed

the hard drive of Defendant’s computer, testified that Defendant’s computer had a

software program on it called LimeWire, which allows one computer to use the

internet to share files with other computers (peer-to-peer file sharing). He

explained that LimeWire users can search for downloadable files by name and

that users often descriptively name their files.

      Detective Holland further said that when he uninstalled and then reinstalled

LimeWire to determine what Defendant would have seen when he installed the

program, a pop-up window appeared during installation that warned about file

sharing. To complete the installation process, a user must click through this

screen. The screen showed that the program’s default setting was to allow public

                                          -3-
sharing of all files in the user’s shared folder, although a user can disable file

sharing by clicking a box on the pop-up window or by later accessing the

program’s options. (Detective Holland stated that by default LimeWire

downloads all files to the public folder.) Detective Holland also testified that

LimeWire can share files with other programs, including iTunes.

      According to Detective Holland, Defendant’s LimeWire had the sharing

feature enabled and his publicly shared folder contained descriptively named

videos of child pornography. The screen from which Defendant would have

played the videos on his computer stated that the listed files were being shared

with the world.

      Detective Holland explained that the officers may not have been able to

access Defendant’s files from the motel guest’s computer when they arrived

because access would not be possible if Defendant’s computer had been turned

off. Although Detective Holland stated that he had no evidence that anyone had

actually downloaded files from Defendant’s shared list, he stated that anyone on

the same network could have downloaded Defendant’s files.

      Defense counsel argued (1) that because the default setting was for

LimeWire to allow for file sharing, there was no direct evidence that Defendant

intended to share his files; and (2) that there was no evidence that Defendant had

actually shared the files because the police officers had been unable to open them.

The district court overruled Defendant’s objection to the distribution

                                          -4-
enhancement. It found that Defendant had made “a conscious, specific choice to

make [his child pornography files] available on LimeWire” because LimeWire

makes it plain to users that their files will be shared unless they choose otherwise

and Defendant’s computer had child pornography in a shared folder. R., Vol. 3 at

49.

      The district court then heard argument on what sentence it should impose.

The government asked for an above-guidelines sentence because of the sadistic

nature of Defendant’s chat messages, his previous child-pornography conviction,

and the length and violent nature of the videos. Defense counsel requested a

sentence at the statutory mandatory minimum, arguing that the chat messages

were based on fantasy and that there was no evidence that Defendant had ever

abused a minor; that the minimum sentence would protect the public because

Defendant would be more than 60 years old when he was released and the court

could impose a lifetime term of supervised release; and that the minimum

sentence would act as an adequate deterrent, especially given that Defendant’s

previous conviction in state court had resulted in a sentence of only 18 months’

imprisonment.

      The district court decided that a “relatively modest upward variance” from

the guideline range was necessary and imposed a sentence of 240 months. Id. at

58. Before imposing the sentence, the court stated that it was mindful of (1) its

“obligation to impose a sentence that is sufficient but not greater than necessary

                                         -5-
to satisfy the statutory objectives of sentencing,” (2) the factors set forth in

18 U.S.C. § 3553, and (3) “the nature and circumstances of the offense[,] . . . the

history and characteristics of the defendant, the kinds of sentences available,

[and] the need to avoid unwarranted sentencing disparities.” Id. at 57. It also

stated that its predominant, but not sole, concern was incapacitation. The court

found the contents of Defendant’s chat messages to be telling, especially in light

of his previous conviction, and determined that the case was not in the same

category as the ordinary child-pornography case.

      On appeal Defendant asks this court to vacate his sentence on the ground

that it is both procedurally and substantively unreasonable.

II.   DISCUSSION

      We review a district court’s sentencing decision “for reasonableness under

a deferential abuse-of-discretion standard.” United States v. Sayad, 589 F.3d

1110, 1116 (10th Cir. 2009). Reasonableness has “a procedural and a substantive

component.” Id. (internal quotation marks omitted). A sentence is procedurally

reasonable if “the district court committed no significant procedural error, such as

failing to calculate (or improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors,

selecting a sentence based on clearly erroneous facts, or failing to adequately

explain the chosen sentence.” Gall v. United States, 552 U.S. 38, 51 (2007).

“Substantive reasonableness, on the other hand, involves whether the length of the

                                          -6-
sentence is reasonable given all the circumstances of the case in light of the

factors set forth in § 3553(a).” Sayad, 589 F.3d at 1116 (brackets and internal

quotation marks omitted).

      A.     Procedural Reasonableness

      We read Defendant’s brief to raise two procedural challenges to his

sentence: (1) that the district court miscalculated the guideline range by imposing

the two-level enhancement under USSG § 2G2.2(b)(3)(F) even though his files

were not available for download, as evidenced by the inability of the police

officers to open them; and (2) that the district court, in fashioning the sentence,

considered only incapacitation and ignored retribution, deterrence, and

rehabilitation. We address each challenge in turn, reviewing “de novo the district

court’s legal conclusions regarding the guidelines and . . . its factual findings for

clear error.” United States v. Gantt, 679 F.3d 1240, 1246 (10th Cir. 2012).

             1.     Distribution Enhancement

      The application note to § 2G2.2 defines distribution to mean “any act,

including possession with intent to distribute, production, transmission,

advertisement, and transportation, related to the transfer of material involving the

sexual exploitation of a minor.” USSG § 2G2.2, cmt. appl. n.1. It also adds that

“distribution includes posting material involving the sexual exploitation of a

minor on a website for public viewing but does not include the mere solicitation




                                         -7-
of such material by a defendant.” Id. Applying this definition, the district court

reasoned:

             The question that is at issue is whether indeed the evidence
      shows any act related to the transfer of material involving the sexual
      exploitation of a minor. And the defendant’s configuration of his
      LimeWire software, together with the presence of these files shown
      by [the government’s exhibit] in the directory that was available,
      clearly establishes that the defendant had committed acts related to
      the transfer of material involving the sexual exploitation of a minor.
      That was the very purpose of the LimeWire software.
             Moreover, looking restrictively at that middle phrase,
      beginning with “including” and ending with “transportation,” the
      evidence clearly establishes that this case falls within the example,
      the very first example, specifically, “possession with intent to
      distribute.” This defendant clearly did possess these files on his
      computer with intent to distribute. In essence, he intended the
      natural and probable consequences of his acts, namely distribution of
      these files to anyone who had the capability of searching for them
      and retrieving them from his computer.

R., Vol. 3 at 50.

      Defendant argues that the district court’s analysis is flawed because there is

no evidence that a transfer of child pornography took place. But the actual

transfer of child pornography is unnecessary. The application note states that

possession with intent to distribute is sufficient. And the court’s finding that

Defendant possessed child pornography with the intent that it be shared with other

LimeWire users is not clearly erroneous. The discussion of 18 U.S.C.

§ 2252A(a)(2) in United States v. Geiner, 498 F.3d 1104 (10th Cir. 2007), does

not assist Defendant because we have interpreted the term distribution in § 2252A

more narrowly than it is defined in § 2G2.2. See id. at 1109 n.5.

                                         -8-
             2.    Statutory Objectives

      Defendant contends that the district court erred by considering only

incapacitation without considering retribution, deterrence, and rehabilitation. The

government argues that we should review this contention for plain error because

Defendant never made this objection below. See Gantt, 679 F.3d at 1246 (“If . . .

Defendant did not preserve the procedural challenge below, we review only for

plain error.”). It appears that the government’s argument has some merit, but we

need not resolve the issue because the district court committed no error.

      Before imposing Defendant’s sentence, the court stated:

             In sentencing, in this case as in all cases, I’m very mindful of
      my obligation to impose a sentence that is sufficient but not greater
      than necessary to satisfy the statutory objectives of sentencing. That
      applies regardless of what the offense is. And that certainly applies
      in this case.
             I’m also mindful of the Section 3553 factors and the need for
      the sentence to reflect the seriousness of the offense, to promote
      respect for the law, and to provide just punishment as well as
      adequate deterrence, protection of the public from further crimes of
      the defendant, and the need to provide the defendant with needed
      education or vocational training or other correctional treatment.

R., Vol. 3 at 57. Although the court noted that its “predominant concern from the

standpoint of sentencing is quite simply incapacitation,” it explicitly stated that

incapacitation was not its “only concern.” Id. Indeed, in announcing the

sentence, the court “concluded that the Section 3553 factors most prominently but

not exclusively including incapacitation require a relatively modest upward

variance from the guideline range.” Id. at 58 (emphasis added). We are satisfied

                                         -9-
that the district court “fulfilled its responsibility to be mindful of the factors that

Congress has instructed it to consider.” United States v. Cordova, 461 F.3d 1184,

1189 (10th Cir. 2006) (internal quotation marks omitted); see id. (“The sentencing

court . . . is not required to consider individually each factor listed in § 3553(a),

nor is it required to recite any magic words to show us that it fulfilled its

responsibility to be mindful of the factors that Congress has instructed it to

consider before issuing a sentence.” (internal quotation marks omitted)).

      B.     Substantive Reasonableness

      “[A] district court’s sentence is substantively unreasonable only if it is

arbitrary, capricious, whimsical, or manifestly unreasonable.” Sayad, 589 F.3d at

1116 (internal quotation marks omitted). We are not persuaded that Defendant

has shown such unreasonableness.

      Defendant claims that his history and characteristics favor a 180-month

sentence, pointing out, among other things, that he had a physically abusive

father, that he had mental-health issues, that he was a dependable employee, that

he was honorably discharged from the Army, and that there was no evidence that

he had ever sexually abused a minor. But the district court could properly

determine that other facts, namely Defendant’s chat messages and his previous

conviction, weighed in favor of an above-guidelines sentence. In the chat

messages Defendant boasted of having shown his genitals to his roommates’

children, claimed to have had sex with his former step-son, described the sadistic

                                          -10-
and grotesque acts involving young boys that he wanted to see portrayed in video,

and expressed a desire to rape a three year old. The district court stated that

although it did not find that Defendant had ever engaged in child abuse, these

“chats w[ere] very telling,” R., Vol. 3 at 57, and that Defendant’s “unequivocal

and repeated indication of those matters that are of interest to him viewed against

the background of [his] previous criminal conduct . . . take this case out of the

category of ordinary child pornography cases,” id. at 58. The court further

explained that the ordinary child-pornography case involves only looking, but the

chat messages showed “those things in which [Defendant] was keenly interested

to the point of compulsion, if you will, to the point of obsession.” Id.

      Defendant, relying on United States v. Allen, 488 F.3d 1244 (10th Cir.

2007), contends that his chat messages cannot support an upward variance

because the messages reflected his thoughts and ideas, not his actions. In Allen

the defendant pleaded guilty to possession of methamphetamine with intent to

distribute. See 488 F.3d at 1248. The guidelines range for the offense was 120 to

135 months’ imprisonment. See id. at 1249. But the district court varied upward

to 360 months’ imprisonment, because of evidence that the defendant had told a

woman that he had a desire to kidnap, rape, and murder young girls, had asked

her to assist him in doing so, and had taken preliminary steps to act on his

desires. See id. at 1245–48, 1252. We vacated the sentence as substantively

unreasonable, holding that a district court “may not discard the advisory

                                         -11-
Guideline range and impose sentence, instead, on the basis of evidence of the

defendant’s uncharged, unrelated misconduct, whether actually committed or

contemplated for the future.” Id. at 1262.

      Allen does not control this case. There are several significant differences.

The upward variance here was 30 months, less than a 15% increase over the top

of the guidelines range; in Allen, the increase was 225 months, more than a 160%

increase. Defendant’s chat messages, unlike the defendant’s statements in Allen,

were related to the charged conduct; the messages discussed sexually perverse

conduct involving young boys, precisely what the child-pornography videos on

Defendant’s computer depicted. And although Allen states that a defendant may

not be sentenced for crimes that he has not yet committed based on evidence that

he is likely to commit them in the future, see id. at 1260, that is not what

happened here. Rather, the district court relied on the chat messages as evidence

that Defendant’s interest in child pornography had reached “the point of

compulsion, . . . the point of obsession,” suggesting a greater need for

incapacitation. R., Vol. 3 at 58. See Allen, 488 F.3d at 1262 (“Sentencing courts

are empowered to impose lengthier sentences when needed to protect the public

from further crimes of the defendant.”). In sum, the district court did not “discard

the advisory Guideline range,” id. at 1262, and “[Defendant] was not sentenced as

if he had committed a totally different[,] and far more serious, crime,” United




                                         -12-
States v. Pinson, 542 F.3d 822, 838 (10th Cir. 2008) (internal quotation marks

omitted).

      Next, Defendant argues that his sentence creates an unwarranted sentencing

disparity because he received a 20-year sentence while a conviction for sexual

exploitation, which requires a person to use a minor to engage in sexually explicit

conduct for the purpose of producing a visual depiction of the conduct, carries

only a 15-year statutory mandatory minimum. See 18 U.S.C. § 2251(a), (e). But

because Defendant has a previous state child-pornography conviction, he is also

subject to a mandatory minimum sentence of 15 years. See id. § 2252(b)(1).

Indeed, he was subject to a higher statutory maximum (40 years) than someone

convicted of sexual exploitation (30 years). See id. §§ 2251(e), 2252(b)(1). Wide

statutory ranges for potential sentences reflect that significant mitigating and

aggravating circumstances may be present. Congress certainly contemplated that

some defendants who violate § 2252(a)(2) should be punished more harshly than

some who violate § 2251(a). The sentence here does not create an unwarranted

sentencing disparity.

      Finally, Defendant argues that the length of his sentence is more than what

is necessary to serve the purposes of sentencing. He contends that a 15-year

sentence with a lifetime of supervised release would suffice to protect the public,

and a shorter sentence would suffice to deter similar conduct. Perhaps. But we

cannot say that the district court abused its discretion given the facts and

                                         -13-
circumstances before it, particularly in light of its concern for incapacitating

Defendant. 1

III.   CONCLUSION

       We AFFIRM Defendant’s sentence.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge




       1
         We note that Defendant contends that the government did not present
evidence warranting an upward departure. But Defendant’s sentence was an
upward variance, not an upward departure. See Gantt, 679 F.3d at 1247 (“A
departure from a guideline sentence is a sentence outside the guideline range but
justified by specific provisions in the guidelines. . . . In contrast, a sentence
variance is a sentence not authorized by the Sentencing Guidelines but
permissible now that the guidelines are merely advisory.”) (citations omitted).

                                         -14-
