                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                Nos. 06-3781/3886
                                  ___________

United States of America,            *
                                     *
      Appellee/Cross-Appellant,      *
                                     * Appeals from the United States
      v.                             * District Court for the
                                     * Southern District of Iowa.
Lester John White, Jr.,              *
                                     *
      Appellant/Cross-Appellee.      *
                                ___________

                             Submitted: June 12, 2007
                                Filed: November 2, 2007
                                 ___________

Before BYE, RILEY, and BENTON, Circuit Judges.
                            ___________

BYE, Circuit Judge.

      Following a bench trial, the district court1 found Lester White, Jr., guilty of
receiving and distributing child pornography in violation of 18 U.S.C. § 2252(a)(2)
and possessing child pornography in violation of 18 U.S.C. § 2252(a)(4), and
sentenced him to a term of imprisonment of seventy-two months. White appeals his
convictions contending the evidence was insufficient. He also appeals his sentence
contending the district court improperly imposed two sentencing enhancements when
calculating the advisory guideline range of 108 to 135 months. The government cross

      1
      The Honorable Ronald E. Longstaff, United States District Judge for the
Southern District of Iowa.
appeals the district court's downward variance from the advisory guideline range. We
affirm.

                                          I

       On December 20, 2001, an employee of the Iowa Department of Human
Services (DHS), opened an anonymous letter containing a photograph of a naked
female child and a male penis. The back of the image contained an inscription
purportedly identifying the female child (hereinafter A.M.) and indicating A.M.'s
mother took the photograph. The letter included A.M.'s address, and the photo
implied A.M.'s father was the man in the picture. The photo was immediately turned
over to a DHS child intake worker for investigation. The same day, United States
Postal Inspector Kevin Marshall received a call from DHS about the mailing and met
with Osceola, Iowa, police officer Charles Beeker to begin an investigation into the
matter. After going to A.M.'s school and meeting her, Inspector Marshall thought the
image was similar to the little girl, but was not convinced it was her.

       Inspector Marshall and Officer Beeker met with A.M.'s parents, who denied
taking the picture and said the girl portrayed in the image was not their daughter.
A.M.'s parents allowed the officers to search their home. No computers, cameras, or
anything connecting the parents to the mailing was found. Due to previous disputes
between themselves and White and his wife (the two couples had accused each other
of child abuse on several occasions), A.M.'s parents suspected the photo had been sent
by White.

       Inspector Marshall determined the purported picture of A.M. was – as known
in law enforcement circles – part of the "Heather" series of child pornography images
and not A.M. On December 27, 2001, the Osceola police contacted Inspector
Marshall and told him the city attorney had recently received a letter from White with



                                         -2-
                                          2
print and typing similar to the inscription on the back of the Heather picture sent to
DHS. A warrant was then issued to search White's house.

      On December 28, 2001, White was at his home when the search warrant was
executed. White admitted to sending the Heather photo to DHS, claiming he had
found it on his computer and thought it looked like A.M. He said he sent the photo
anonymously because he had reported prior concerns to DHS about A.M.'s family, but
those complaints had gone unheeded. He believed an anonymous report would get
more attention.

       White acknowledged the Heather picture was still on his computer. He
provided step-by-step instructions on how to locate the Heather photo stored on his
computer's hard drive. White admitted he saved the Heather photo to his computer,
but had no explanation as to why he would need to save the image as proof when it
was reported to DHS anonymously and no one could track it to him. White then told
Inspector Marshall he would find other images of child pornography, besides the
Heather picture, stored on the computer's hard drive. White again instructed the
officers, step-by-step, on how to access a computer subfolder called "checking," which
contained multiple images of child pornography.

       A forensic analysis of White's computer revealed images of child and adult
pornography. Additionally, the investigation uncovered two computer disks labeled
"Adults Only. Keep Out!" and "XXX Newsgroup." White created both disks and
admitted he created the "Girls" subdirectory on the latter disk. He told Inspector
Marshall – verbally and in a written confession – he had downloaded the images of
child pornography found on the hard drive. White admitted writing the "XXX" on the
"XXX Newsgroup" computer disk, as well as "Photos from Newsgroup" inside the
case holding the disk. White further admitted writing "Adults Only. Keep Out!" on
the second computer disk, but claimed to have no idea what was on the disk. All told,
the authorities discovered approximately fifty images of child pornography.

                                         -3-
                                          3
       Much of the child pornography had been downloaded from Outlook Express
Newsgroups to which White was a subscriber. The forensic examination revealed the
computer had been used to subscribe to dozens of newsgroups, including
pedophilia.box.dbx, pedophilia.girls.dbx, alt.pedophilia.pictures.dbx, and
alt.sex.incest.dbx, among others. At one point White claimed the only thing on his
computer were "adults-only materials," later claiming numerous family photos were
on the computer. On both of the computer disks described above, no files other than
child or adult pornography were found.

      As a result of White mailing the Heather photo to DHS, A.M. was subjected to
a physical examination and interview with officers to determine whether her parents
were sexually abusing her. A.M.'s parents had their children taken away from them
overnight.

       A federal grand jury charged White in a three-count indictment with receiving,
possessing, and distributing child pornography. Following White's waiver of his right
to a jury trial, the government consented to a bench trial. At trial, White denied
knowing about any child pornography on his computer, other than the Heather image,
and denied showing the investigators the Heather photo on his computer. He also
denied any knowledge of the two computer disks found during the search of his home.
Following the bench trial, the district court found White guilty on all three counts of
the indictment.

      At sentencing, A.M.'s victim impact statement indicated she continued to suffer
from the incident, such as being afraid to have her picture taken by a video camera,
being embarrassed about going to the doctor, and having nightmares about White.




                                         -4-
                                          4
      The district court calculated White's advisory guideline range as follows.
Pursuant to United States Sentencing Guidelines (U.S.S.G.) § 2G2.2 (2001),2 the base
offense level for White's offense conduct was seventeen. To this, the district court
added

      !      a two-level enhancement under U.S.S.G. § 2G2.2(b)(1) because
             the Heather image distributed to DHS depicted a minor under the
             age of twelve years;

      !      a four-level enhancement under U.S.S.G. § 2G2.2(b)(3) because
             the Heather image portrayed sadistic or masochistic conduct
             (vaginal rape by an adult male);

      !      a two-level enhancement under U.S.S.G. § 2G2.2(b)(5) because
             a computer was used for the transmission of the pornographic
             material; and

      !      a two-level enhancement under U.S.S.G. § 3C1.1 for obstruction
             of justice based on the district court's finding White's trial
             testimony was inconsistent with the statements he made at the
             time of the search of his home.

      In addition, as relevant to the issues raised on appeal, the district court imposed

      !      a two-level enhancement under U.S.S.G. § 3A1.1 after
             determining A.M. was a vulnerable victim of the offense; and


      2
        Due to ex post facto concerns, the district court used the guidelines manual
effective November 1, 2001. Unless otherwise noted, all guidelines' references are to
the guidelines manual effective November 1, 2001.

                                          -5-
                                           5
      !      a two-level enhancement under U.S.S.G. § 2G2.2(b)(2)(E)
             because the offense involved distribution of child pornography.

      White's final advisory guideline range was 108 to 135 months (Offense Level
31 under Criminal History Category I). Absent the two enhancements White
challenges on appeal, the advisory guideline range would have been 70 to 87 months
(Offense Level 27 under Criminal History Category I).

       White requested a downward variance from the advisory guideline range based
on several factors, including his age, medical condition, lack of a criminal record,
community service, and the fact he possessed relatively few images of child
pornography and distributed just a single image. The government requested an
upward variance based on the fact White used an image of child pornography to make
a false report to DHS authorities in an attempt to frame A.M.'s parents for sexually
abusing her. The district court denied the government's request for an upward
variance, and granted White's request for a downward variance. In denying the
government's request and granting White's, the district court considered the arguments
made by both parties:

            The guidelines here – I've made every finding against the
      Defendant in favor of the Government with regard to the guideline
      calculations. Some of those were very close findings, but I think under
      the guidelines they are the correct finding.

             With regard to the Government's motion for upward departure, I
      find there's no basis for departure upward, and I will deny that motion.
      I think the conduct we're talking about here, while reprehensible, is
      adequately dealt with in the calculation of the guidelines. And what
      we're talking about is a guideline sentence of between nine and eleven
      years, which is going to be – whatever the sentence is, Mr. White is
      going to go to jail and spend a very significant part of his remaining life
      behind bars.


                                         -6-
                                          6
       But I find in evaluating the conduct and the guideline calculation
that a sentence at the low end of the guideline range is the appropriate
guideline sentence. And my guideline sentence will be nine years, one
hundred eight months. The remaining factor for me to consider is
whether or not, then, there is a downward departure for consideration
under 3553(a).

       I think we all know the factors that I need to consider. I've already
stated that although I recognize his community service as reflected in the
record, I do not find that is a ground for any variance and will not
consider that.

      With regard to his variance, obviously, factors that were not
recognizable as matters for departure under the guidelines can and
should be evaluated in reaching a fair and equitable sentence to both the
Defendant and the Government. And things like the Defendant's age, his
minimal criminal record, his medical condition are factors that can and
should be considered.

       Mr. White is 51 years old. . . . At the present time, he does have
a deteriorating medical condition between his diabetes, his high blood
pressure, weakness in his extremities and difficulty in walking. And
although I agree with the Government that medical conditions can and
will be treated well in the Bureau of Prisons, they're still a factor in
determining the appropriate length of sentence. All of these factors play
into the Court's consideration of possible variance downward.

       The big factor to me is to weigh the nature and circumstances of
this offense. This is a very unusual offense. The distribution that we're
normally talking about in this kind of case is one of distribution through
a computer and sending images out across the internet to hundreds and
perhaps thousands of other individuals.

      We don't have that here. We have one – The distribution count is
centered on one isolated event. Although very serious and damaging and
traumatic, it was one isolated event. And I think that is important in
evaluating a variance.


                                    -7-
                                     7
             Counterproductive against that, of course, is the hateful nature of
      the event. I don't think you were doing it to protect the child, I think you
      were doing it as part of a vindictive action against the parents you were
      having strong disagreements with. So that counterbalances the extent of
      the departure, but I think – extent of the variance. But I still think there
      is grounds for a variance because of the nature of the distribution that
      occurred here.

             Again, 50 images on the computer is extremely low, as far as I'm
      concerned. The typical case I have there are literally hundreds and often
      thousands of images located on the computer. And again, I think –
      although I recognize it's still a violation of the law to download any child
      pornography, obviously the amount of it has to factor into the
      psychological concern and problem that the individual has with regard
      to child pornography. And here I find the fact that there were only 50
      images is an appropriate factor to consider in a downward variance[.]

Sent. Tr. 35-38.

       White filed a timely appeal challenging the sufficiency of the evidence in
support of the convictions, and further challenging the district court's use of the
vulnerable victim enhancement under U.S.S.G. § 3A1.1 and the child pornography
distribution enhancement under U.S.S.G. § 2G2.2(b)(2)(E). The government filed a
timely cross appeal challenging the district court's downward variance, but did not
cross appeal the district court's denial of the motion for an upward variance.

                                           II

       White contends the evidence was insufficient to support his convictions. When
considering a sufficiency challenge, "we review the evidence in the light most
favorable to the government and accept all reasonable inferences that support the
jury's verdict." United States v. Allen, 440 F.3d 449, 450 (8th Cir. 2006). "In
reviewing the sufficiency of the evidence after a bench trial, we apply the same


                                          -8-
                                           8
standard that we apply when reviewing a jury verdict." United States v. Vaughn, 410
F.3d 1002, 1004 (8th Cir. 2005). This court "may reverse convictions based upon
insufficiency of the evidence only upon a demonstration that a rational jury would
have had no choice but reasonably to doubt the existence of an element of a charged
crime." United States v. Williams, 181 F.3d 945, 950 (8th Cir. 1999) (internal
quotations and citations omitted).

                                           A

       The convictions for receipt and possession of child pornography turn on
essentially the same requirements and evidence, and thus will be discussed together.
The elements of receipt under 18 U.S.C. § 2252(a)(2) require the defendant to
knowingly receive an item of child pornography, and the item to be transported in
interstate or foreign commerce. The elements of possession under 18 U.S.C.
§ 2252(a)(4)(B) require the defendant to knowingly possess an item of child
pornography, and the item to be transported in interstate or foreign commerce by any
means.

      White contests the evidence was insufficient to show he "knowingly" received
and possessed child pornography. "If the district court's account of the evidence is
plausible in light of the record viewed in its entirety, the court of appeals may not
reverse it even though convinced that had it been sitting as the trier of fact, it would
have weighed the evidence differently." United States v. Tucker, 243 F.3d 499, 506
(8th Cir. 2001) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 574
(1985)).

      In this case, the evidence was more than sufficient to support the district court's
finding White knowingly received and possessed child pornography. Images of child
pornography were found on White's computer. White admitted creating the two
computer disks, and to creating the subdirectory "girls" which contained the images

                                          -9-
                                           9
of child pornography. In addition, White admitted writing the words "Photos from
Newsgroups"on the inside cover of one of the two computer disks.

       White claims he unknowingly transferred the child pornography from his
computer to the disks he created while backing up his computer. White stated he
transferred data to the disks in complete files and not image-by-image, and while he
was transferring adult pornography to the "XXX" disk, he unknowingly transferred
the child pornography. However, when Inspector Marshall asked if there was any
child pornography on his computer, White admitted there was and provided step-by-
step instructions for Inspector Marshall to locate the images. This evidence belies
White's claim he was unaware of any child pornography existing on his computer's
hard drive or the two computer disks he created.

       Furthermore, White's computer reflected subscriptions to various child
pornography-related newsgroups. White contends there were eight other individuals
who had unfettered access to the family computer, and any one of those individuals
could be responsible for the child pornography present on the computer. However,
this does not explain how White himself was able to provide step-by-step instructions
on accessing the child pornography on the computer.

      With respect to the possession conviction, White argues 18 U.S.C. § 2252(c)
should apply. Section 2252(c) sets forth an affirmative defense to a charge of
possession if a defendant possesses less than three matters containing a visual
depiction of child pornography, and

      promptly and in good faith, and without retaining or allowing any
      person, other than a law enforcement agency, to access any visual
      depiction or copy thereof – (A) [takes] reasonable steps to destroy each
      such visual depiction; or (B) report[s] the matter to a law enforcement
      agency and afford[s] that agency access to each such visual depiction.

18 U.S.C. § 2252(c)(2)(A) - (B).

                                        -10-
                                         10
        White is not entitled to the affirmative defense for several reasons. First, he
possessed more than three images of child pornography. Second, he retained all of the
images involved in the charged offenses, rather than taking reasonable steps to destroy
them. Third, even assuming DHS was a "law enforcement agency" for purposes of
the defense, White only provided DHS a copy of a single image of those involved to
DHS, and by doing so anonymously did not afford DHS access to the visual depiction
itself, which he retained. Finally, the affirmative defense requires a defendant to act
in good faith. The district court rejected White's claim he sent the Heather image to
DHS because he truly believed it depicted A.M. being sexually abused by her parents,
and instead found White sent the image to DHS "as part of a vindictive action against
[A.M.'s] parents." This does not constitute good faith. In sum, White did not meet
any requirements of § 2252(c)'s affirmative defense.

                                          B

       We next discuss the sufficiency of the evidence in support of the distribution
conviction. White does not dispute his act of mailing the Heather photo to DHS
constitutes "distribution" of child pornography under 18 U.S.C. § 2252(a)(2), but
rather contends that holding him "legally accountable for this 'distribution' would
undermine Iowa's child abuse reporting procedures and overstep the purpose of the
distribution statute." We disagree. White's contention is premised on his claim he
sent the image to DHS out of concern for A.M. The district court rejected this claim,
finding White's conduct was a vindictive act against A.M.'s parents. The evidence
supports the district court's findings. We fail to see how holding White accountable
for his attempt to frame A.M.'s parents with a false report of child abuse will
undermine Iowa's child abuse reporting procedures or overstep the purpose of the
federal statute.




                                         -11-
                                          11
                                          III

       White challenges his sentence by claiming the district court improperly
calculated the advisory guideline range. We review this challenge de novo. United
States v. Grindberg, 470 F.3d 758, 760 (8th Cir. 2006). Any findings of fact the
district court made to support its calculation of the advisory guideline range are
reviewed for clear error. Id.

                                          A

       White argues the district court improperly applied a two-level enhancement
under U.S.S.G. § 3A1.1. White argues § 3A1.1 does not apply "if the factor that
makes the person a vulnerable victim is incorporated in the offense guideline. For
example, if the offense guideline provides an enhancement for the age of the victim,
this subsection would not be applied unless the victim was unusually vulnerable for
reasons unrelated to age." U.S.S.G. § 3A1.1 cmt. n.2 (2001). White contends the
vulnerable victim factor was already incorporated in his offense guideline because he
received a two-level enhancement pursuant to U.S.S.G. § 2G2.2(b)(1) (2001) which
applies when "the material involved a prepubescent minor or a minor under the age
of twelve years."

       The district court based the § 3A1.1 enhancement on A.M.'s victimization and
vulnerability, while the § 2G2.2(b)(1) enhancement was based on age of the child
depicted in the Heather image. It was not improper for the district court to impose the
§ 3A1.1 enhancement based on A.M.'s age-related vulnerability, while also imposing
the § 2G2.2(b)(1) enhancement based on the age of the child depicted in the Heather
image, because the enhancements were based on two separate victims. The factors
that made A.M. a vulnerable victim under § 3A1.1 were not taken into account in the
age-related enhancement White received under § 2G2.2(b)(1).



                                         -12-
                                          12
      White further contends A.M. was not a victim of his conduct. White's conduct,
however, caused A.M. to be taken out of school by police officers and questioned
about whether her father had sexually abused her. White's conduct resulted in A.M.
being subjected to a physical examination to determine whether she was the victim of
sexual abuse. A.M. and her siblings were removed temporarily from their parents'
custody. A.M.'s victim impact statement indicates she is afraid to have her picture
taken by a video camera, is embarrassed about going to the doctor, and has nightmares
about White. Based on this record, the district court did not clearly err in finding
A.M. was a victim of White's criminal conduct.

                                           B

       White also contends the district court improperly applied a two-level
enhancement under U.S.S.G. § 2G2.2(b)(2)(E) for distribution of child pornography.
Under § 2G2.2(b)(2)(E), a two-level enhancement applies whenever "[d]istribution
other than distribution described in subdivisions (A) through (D)" occurs.
Subdivisions (A) through (D) set forth higher level enhancements when the
distribution is for such things as pecuniary gain (at least five levels), in exchange for
something of value other than money (five levels), to a minor (five levels), or to a
minor in an attempt to have the minor engage in prohibited sexual conduct (seven
levels). See U.S.S.G. § 2G2.2(b)(2) (2001). In other words, at a minimum, a two-
level enhancement applies whenever distribution is involved, with the possibility of
higher enhancements when certain aggravating factors are present. Because White's
conduct involved distribution, but did not involve any of the aggravating factors set
forth in subdivisions (A) through (D), the district court properly applied the minimum
two-level enhancement under subdivision (E). White's contention the enhancement
was improper is meritless.




                                          -13-
                                           13
                                           IV

       The government's cross appeal challenges the district court's downward
variance from the advisory guideline range. "We review a district court's variance
from the advisory guidelines range under a reasonableness standard that is similar to
an abuse of discretion review." United States v. Pool, 474 F.3d 1127, 1129 (8th Cir.
2007) (citing United States v. Plaza, 471 F.3d 876, 878 (8th Cir. 2006)). An abuse of
discretion may occur "if a sentencing court fails to consider a relevant factor that
should have received significant weight, gives significant weight to an improper or
irrelevant factor, or considers only appropriate factors but nevertheless commits a
clear error of judgment by arriving at a sentence that lies outside the limited range of
choice dictated by the facts of the case." United States v. Haack, 403 F.3d 997, 1003
(8th Cir. 2005). In reviewing whether the district court's variance fell outside the
range of choice dictated by the facts of the case, we are mindful of the fact that "[t]he
sentencing judge has access to, and greater familiarity with, the individual case and
the individual defendant before him than the [Sentencing] Commission or the appeals
court." Rita v. United States, 127 S. Ct. 2456, 2469 (2007).

       The government first contends White's sentence was unreasonable because the
district court based the variance in part on some factors ordinarily considered
irrelevant in calculating the advisory guideline range, namely, White's age and
medical condition. This argument is not well-taken. Under the post-Booker3
advisory guideline regime, district courts are not only permitted, but required, to
consider "the history and characteristics of the defendant." 18 U.S. C. § 3553(a)(1).
This mandate includes consideration of a defendant's age and medical condition. See
United States v. Ryder, 414 F.3d 908, 920 (8th Cir. 2005) (finding Booker error and
remanding for resentencing where the district court believed it was without discretion
to vary from the guidelines based on the defendants' health and ages); see also United


      3
       United States v. Booker, 543 U.S. 220 (2005).

                                          -14-
                                           14
States v. Lamoreaux, 422 F.3d 750, 756 (8th Cir. 2005) (concluding the district court
properly anticipated Booker by considering non-Guidelines sentencing factors such
as prior military service, the defendant's wife's pregnancy, his need to care for other
children, and his entrepreneurial spirit).

      The government next argues the district court's variance was impermissibly
based on factors already taken into consideration in the calculation of the advisory
guideline range, namely, White's lack of a criminal history and the limited number of
pornographic images he distributed. This argument is also not well-taken. Pursuant
to § 3553(a), a district court may consider factors already taken into account in
calculating the advisory guideline range. See, e.g., United States v. Beal, 463 F.3d
834, 837 (8th Cir. 2006) (discussing the reasonableness of a variance based on
criminal history).

       The government also contends the thirty-three percent downward variance in
this case is extraordinary, and thus must be supported by extraordinary circumstances.
For this proposition, the government cites United States v. Bradford, 447 F.3d 1026
(8th Cir. 2006), identifying Bradford as a case which involved a thirty-six percent
downward variance. In fact, the variance recognized as extraordinary in Bradford was
"a sixty-seven percent downward variance from the bottom of the applicable guideline
range." 447 F.3d at 1028 (emphasis added). The only reason given by the district
court for departing sixty-seven percent was an overstated criminal history, which
resulted in Bradford receiving a criminal history category of VI under the guidelines.
Id. In discussing the extraordinariness of a sixty-seven percent variance based solely
on an overstated criminal history, the court noted "even if Bradford had no criminal
history and were placed in a criminal history category of I . . . [t]he thirty-six month
sentence imposed would still be a thirty-six percent variance from the bottom of the
guideline range." Id. at 1028-29. The Bradford court never identified this hypothetical
thirty-six percent variance as extraordinary. We have, however, specifically
identified an actual thirty-six percent variance as being within the permissible "range

                                         -15-
                                          15
of choice" available to a district court. United States v. Kicklighter, 413 F.3d 915, 918
(8th Cir. 2005) (citing Haack, 403 F.3d at 1004). We therefore reject the
government's contention the variance involved in this case must be supported by
extraordinary circumstances.

       Finally, the government contends the sentence of seventy-two months is
unreasonable when considering the overall facts of this case, that is, the district court
"fail[ed] to consider a relevant factor that should have received significant weight,
[gave] significant weight to an improper or irrelevant factor, or consider[ed] only
appropriate factors but nevertheless commit[ted] a clear error of judgment by arriving
at a sentence that lies outside the limited range of choice dictated by the facts of the
case." Haack, 403 F.3d at 1003. More specifically, the government contends there
is nothing about the factors the district court considered in granting the variance (age,
medical condition, lack of a criminal record, and limited number of pornographic
images possessed and distributed) which actually merits a variance. In addition, the
government claims the atypical nature of White's offense, in distributing child
pornography to falsely implicate A.M.'s parents of child abuse, "strongly militates
against the award of a downward deviation[.]"

       While the district court indicated White's age (fifty-one years), his health
problems (diabetes, high blood pressure, weakness in his extremities, and difficulty
walking), and his lack of a criminal record were "factors" that played into
consideration of a possible variance downward, it stated the "big factor" considered
was the unusual nature of this particular offense. Sent. Tr. 37. The district court
identified four aspects of this case which it believed were unusual – three mitigating
in nature and one aggravating in nature: 1) the distribution count involved "one
isolated event," 2) the single act of distribution was "very serious and damaging and
traumatic," 3) the "50 images on the computer [was] extremely low," and 4) the low




                                          -16-
                                           16
number of images involved "has to factor into the psychological concern and problem
that the individual has with regard to child pornography." Id. at 37-38.4

       The district court then compared those aspects of this case to the "typical case"
it encountered, where "[t]he distribution that we're normally talking about in this kind
of case is one of distribution through a computer and sending images out across the
internet to hundreds and perhaps thousands of other individuals" and where the
possession involved "literally hundreds and often thousands of images located on the
computer." Id. at 37. And while the district court did not specifically identify the
"typical case" as one involving a defendant who posed a risk of committing sexual
offenses against children, this seems implicit in the district court's recognition of the


      4
       With respect to this fourth factor, it is significant White was subjected to
psychosexual examinations at the request of both the government and his own
attorney, and both experts agreed White did not fit the profile of a typical sexual
offender in that he was at a low risk of committing another sexual offense. Dr. Jason
Smith, the government's expert, indicated in his report:

      Mr. White appears to be low on these instruments that measure both the
      anti-social dimension of sexual offending and the erotic as well. In
      short, he has a low antisocial orientation with low risk of sexual
      offending against children.

Similarly, the report prepared by White's expert, Dr. Luis Rosell, indicates:

      Mr. White has many factors that make lower his risk. These include Mr.
      White's lack of criminal history, nonexistent sex offending history, time
      in the community without engaging in any sexually inappropriate or
      illegal behavior, family support, resides in small town where everyone
      is aware of his situation and decreased sex drive due to his medical
      condition. Given all the factors that make him a low risk to engage in
      future inappropriate sexual behavior, as well as social support it appears
      that Mr. White does not require sex offender specific treatment at this
      time.

                                          -17-
                                           17
lack of "psychological concern" White posed as reflected by the record. After
conducting this comparison between White's unusual case and the "typical case"
encountered, the district court determined a downward variance was appropriate,
taking into account White's age, medical condition, and lack of a criminal record, as
well as the three mitigating aspects of the case.

       The government argues the limited number of images possessed by White
supports an upward, rather than downward, variance because White would receive a
two-level enhancement under the current guidelines. See U.S.S.G. § 2G2.2(b)(7)(A)
(2006) ("If the offense involved . . . at least 10 images, but fewer than 150, increase
by 2 levels."). We disagree. It would be unconstitutional under the ex post facto
clause to apply the current version of the guidelines to White's conduct, which is why
the district court utilized the 2001 version of the guidelines. The 2001 version of the
guidelines made no adjustments for the number of images involved; thus, without a
variance White's conduct in distributing just a single image and possessing a limited
number of images would be treated the same for sentencing purposes as the "typical"
defendant identified by the district court who distributed and possessed hundreds if
not thousands of pornographic images. Because the 2001 version of the guidelines
applied, the district court was within its discretion to treat White differently than the
"typical" defendant would be treated under that version of the guidelines.

       In support of the district court's variance, White calls our attention to United
States v. Gray, 453 F.3d 1323 (11th Cir. 2006). In Gray, the defendant sent three e-
mails containing child pornography to an undercover agent. When authorities
searched Gray's home they found 300 images of child pornography on his computer.
Gray admitted he had distributed additional images – other than the three sent to the
undercover agent – over the Internet to other individuals. Gray was charged with
possession and distribution of child pornography, and pleaded guilty to the
distribution charge. Gray's advisory guideline range was 151 to 188 months. At
sentencing, Gray noted he was sixty-four years old, had a history of health problems,

                                          -18-
                                           18
had never molested a child, and had a minimal criminal history. Based on these
factors, the district court varied downward from the advisory guideline range and
sentenced Gray to 72 months of imprisonment. The government appealed the
sentence arguing it was unreasonable, but the Eleventh Circuit affirmed, stating:

      Here, the district court gave specific, valid reasons for imposing a
      sentence that was lower than the guidelines range. The court's
      statements at sentencing reflect that it took into account Gray's age, his
      prior minimal criminal record, and his medical condition. These are all
      valid considerations because they relate to the "history and
      characteristics of the defendant." The court weighed these factors
      against "the nature and circumstances of the offense" and decided to
      impose a non-guidelines sentence. There is no indication that the court
      imposed the lower sentence solely because it disagreed with the
      guidelines. Rather, the court's statements show that it believed the
      72-month sentence to be reasonable. Although Gray's sentence is less
      than half the 151 months that defines the bottom of the guidelines range,
      under the circumstances and given the district court's explanation we
      cannot say that is unreasonable in light of the § 3553(a) factors.

Gray, 453 F.3d at 1325 (internal citations omitted).

        We agree this case has many similarities to those involved in Gray. Like Gray,
White is an older man with a deteriorating medical condition who has never molested
a child. Gray had a limited criminal history, White has no criminal history. Added
to this case is the fact that medical experts for both the government and defense
identified White as a defendant who poses a low risk of recidivism. The number of
images White distributed (one) and possessed (fifty) was lower than the number of
images Gray distributed (more than three) and possessed (300). Finally, the
percentage of variance White received (thirty-three percent) was well below the
percentage Gray received (more than fifty percent). Although our court may not have
affirmed the level of variance involved in Gray, like the Eleventh Circuit, we conclude
all the factors the district court considered here were valid considerations, the district

                                          -19-
                                           19
court carefully weighed those factors against "the nature and circumstances of the
offense," and the resulting thirty-three percent variance from the advisory guideline
range was within the range of choices available to the district court.

       Furthermore, while we recognize there are some inherent aggravating factors
present in White's distribution of child pornography (discussed below), there are some
mitigating aspects to White's single act of distribution as well. Typically, when a
defendant distributes child pornography to others, the child depicted in the image is
victimized repeatedly, because those who receive the image are likely to distribute the
image to others who have a deviant interest in child pornography, who in turn
distribute the image to others, and so on. The probability of repeated victimization is
increased when the image is distributed over the Internet. White's single act of
distribution did not take place over the Internet. In addition, White distributed the
image to a state agency charged with the protection of children. Such a distribution
virtually guarantees there will be no further distribution of that particular image to
others, and thus the repeated victimization of the child normally present in the typical
case is absent here.

       With respect to the aggravating factor the government argues should negate any
downward variance – the fact the single act of distribution involved a false report of
child abuse against A.M.'s parents – the district court determined that the conduct
"while reprehensible, is adequately dealt with in the calculation of the guidelines."
Sent. Tr. 35. We agree.




                                         -20-
                                          20
       If White had been charged with making a false report of child abuse against
A.M.'s parents under Iowa law,5 the charge would have been a simple misdemeanor6
punishable by a fine and/or no more than thirty days in jail.7 In contrast, under the
district court's calculation of the advisory guideline range, White received several
enhancements which related exclusively to White's conduct of falsely accusing A.M.'s
parents of child abuse, i.e., the single act of distribution. The two-level enhancement
White received under § 2G2.2(b)(2)(E) related exclusively to the single act of
distribution, as did the two-level enhancement White received under § 3A1.1 for
victimizing A.M. by falsely accusing her parents of child abuse. All told, then, White
received guideline enhancements due to the single act of distribution which increased
his advisory guideline range four levels, from 70-87 months up to 108-135 months,
an increase of 38-48 months.

       We do not mean to downplay the reprehensible nature of White's false
allegation against A.M.'s parents. We do believe, however, the gravamen of the false
report of child abuse was the harm done to A.M., a harm taken into account in the §
3A1.1 enhancement. And while the federal guidelines have no specific enhancement
to neatly capture and account for the additional harm done to A.M.'s parents as a result
of the single act of distribution, we do believe the district court was within its
discretion to determine the total harm which flowed from the false report of child

      5
       There does not appear to be any federal statute specifically targeting the act of
providing a false report of child abuse.
      6
        See Iowa Code Ann. § 232.75(3) ("A person who reports or causes to be
reported to the department of human services false information regarding an alleged
act of child abuse, knowing that the information is false or that the act did not occur,
commits a simple misdemeanor.").
      7
        See Iowa Code Ann. § 903.1(1)(a) ("For a simple misdemeanor, there shall be
a fine of at least sixty-five dollars but not to exceed six hundred twenty-five dollars.
The court may order imprisonment not to exceed thirty days in lieu of a fine or in
addition to a fine.").

                                         -21-
                                          21
abuse – an act which would have warranted no more than one month in jail under state
law – was adequately dealt with by the 38 to 48 month increase in the advisory
guideline range as a result of enhancements related exclusively to the single act of
distribution.

      In sum, the district court considered factors that were appropriate for it to
consider in varying downward from the advisory guideline range, provided adequate
reasons for its downward variance, and concluded a sentence of seventy-two months
was "sufficient, but not greater than necessary" to punish White. 18 U.S.C. § 3553(a).
When reviewing all the factors and the particular circumstances involved in this case,
we cannot say a sentence of six years for the conduct at issue is unreasonable.

                                           V

      We affirm the district court's decision in all respects.

RILEY, Circuit Judge, concurring in part and dissenting in part.

      I concur in the court’s opinion except with respect to the affirmance of the
downward variance. The district court properly calculated an advisory Guideline
sentencing range of 108 to 135 months’ imprisonment, yet it only imposed a sentence
of 72 months’ imprisonment. By varying downward four levels, the district court
imposed a sentence that is not reasonable under the unique and disturbing facts of this
case.

       In calculating a downward variance, the district court considered several factors
under 18 U.S.C. § 3553(a), including White’s age, health, and lack of criminal history.
The “big factor” for the district court was “to weigh the nature and circumstances of
[White’s] offense.” The nature and circumstances of White’s offense do not support
the extent of the district court’s downward variance.

                                         -22-
                                          22
      White downloaded approximately fifty images of child pornography. White
then printed an image of child pornography, falsely labeled it as an image of A.M.
taken by A.M.’s mother, and anonymously mailed it to the Iowa Department of
Human Services. In the context of deciding whether to apply the vulnerable victim
enhancement, the district court found White should have known this course of action
would cause A.M. and A.M.’s family “terrible emotional stress,” and the district court
correctly concluded “it was a vicious, vindictive act.”

      Generally, child pornography causes much harm, including:

      (1) the use of children in the production of sexually explicit material is
      a form of sexual abuse that can result in physical or psychological harm,
      or both, to the children involved;

      (2) child pornography permanently records the victim’s abuse, and its
      continued existence causes the child victims of sexual abuse continuing
      harm by haunting those children in future years;

      (3) child pornography is often used as part of a method of seducing other
      children into sexual activity; a child who is reluctant to engage in sexual
      activity with an adult, or to pose for sexually explicit photographs, can
      sometimes be convinced by viewing depictions of other children “having
      fun” participating in such activity;

      (4) child pornography is often used by pedophiles and child sexual
      abusers to stimulate and whet their own sexual appetites, and as a model
      for sexual acting out with children; such use of child pornography can
      desensitize the viewer to the pathology of sexual abuse or exploitation
      of children, so that it can become acceptable to and even preferred by the
      viewer;

      (5) the existence of and traffic in child pornography creates the potential
      for many types of harm in the community; presents a clear and present
      danger to all children; and inflames the desires of child molesters,



                                         -23-
                                          23
      pedophiles, and child pornographers who prey on children, thereby
      increasing the creation and distribution of child pornography; and

      (6) the sexualization and eroticization of minors through any form of
      child pornography has a deleterious effect on all children by encouraging
      a societal perception of children as sexual objects and leading to further
      sexual abuse and exploitation of them, and it creates an unwholesome
      environment that affects the psychological, mental, and emotional
      development of children and undermines the efforts of parents and
      families to encourage the sound mental, moral, and emotional
      development of children.

Child Pornography Prevention Act of 1996, Pub. L. No. 104-208, § 121, 110 Stat.
3009, 3009-26 (1996).

       By receiving, distributing, and possessing child pornography, White harmed
(1) the child victim by viewing the recording of the child’s abuse, (2) himself by
desensitizing himself to the sexual abuse of children, by thinking of children as sexual
objects, and by inflaming his own desire for child pornography, and (3) other children
(and more generally, the community at large) by providing demand for the production
of child pornography. White is neither less culpable nor less deserving of punishment
than the typical defendant who receives, distributes, and possesses child pornography.
Rather, White is at least as deserving of punishment (and possibly more so) as the
typical defendant who receives, distributes, and possesses child pornography because
White distributed child pornography with the specific intent to cause harm to A.M.’s
family directly and A.M. indirectly.

       As a direct result of White’s course of action, A.M. (1) was taken from school,
(2) physically examined and questioned by a doctor, and (3) temporarily removed,
together with her siblings, from her parent’s home and care. A.M. now is embarrassed
in front of her doctor. She reports related nightmares. She is afraid of having her
picture taken, and she feels angry, fearful for herself and her siblings, unsafe, sad,


                                         -24-
                                          24
scared, and confused. In addition to all of the well recognized abstract harms caused
by child pornography, White’s distribution of child pornography specifically harmed
A.M. and A.M.’s family in a manner that is uniquely deserving of punishment.

       The panel opinion correctly observes White received two 2 level enhancements
due to White’s distribution of child pornography. The 4 level downward variance
offsets the two 2 level enhancements, effectively not holding White responsible for
“a vicious, vindictive act” of distributing child pornography.

       In addition, besides being convicted of one count of distributing child
pornography, in violation of § 2252(a)(2), White was convicted of one count of
receiving child pornography, in violation of 18 U.S.C. § 2252(a)(2), and one count of
possessing child pornography, in violation of § 2252(a)(4). Both the district court and
the panel majority place emphasis on the atypical nature of White’s distribution of
child pornography. Although a conviction for distributing child pornography to the
Iowa Department of Human Services is atypical, there is nothing about White’s
convictions for receiving and possessing child pornography that justifies a downward
variance. By varying downward based on the atypical nature of White’s distribution
of child pornography, both the district court and the panel majority ignore the
seriousness of White’s receipt and possession convictions.

       At sentencing, the district court noted White only possessed approximately fifty
images of child pornography. The 2001 version of the Guidelines contained no
enhancement based on the number of images of child pornography involved in the
offense. See U.S.S.G. app. C. amend. 649 (2003); compare U.S.S.G. § 2G2.2(b)
(2001), with U.S.S.G. § 2G2.2(b)(7)(A) (2006) (“If the offense involved . . . at least
10 images, but fewer than 150, increase by 2 levels.”). In comparison to the
defendants with only a single image of child pornography, the defendants with
hundreds of images deserve more punishment due to the nature and circumstances of
the offense as well as the need for the sentence to reflect the seriousness of the crime,

                                          -25-
                                           25
to promote respect for the law, and to provide just punishment for the offense. See 18
U.S.C. § 3553(a)(1), (2)(A). That the defendants with hundreds of images deserve
relatively more harsh sentences only logically supports the conclusion that the
defendants with only a single image deserve relatively less harsh sentences; it does not
logically support a conclusion that a defendant with fifty images deserves leniency in
the form of a downward variance. Cf. United States v. Feemster, 483 F.3d 583, 589
(8th Cir. 2007) (“The absence of grounds that justify further punishment is not a
ground for a downward variance.”).

       The district court varied downward based on several other factors, including
White’s age at the time of sentencing. Although the Guidelines are no longer
mandatory, the Guidelines policy statements must be considered in imposing a
sentence. See 18 U.S.C. § 3553(a)(5)(A). The Guidelines provide “[a]ge . . . is not
ordinarily relevant in determining whether a sentence should be outside the applicable
guideline range.” U.S.S.G. § 5H1.1, p.s. Significant variances based on a defendant’s
age produce unwarranted sentencing disparities because judges do not uniformly treat
age as a mitigating factor. See United States v. Maloney, 466 F.3d 663, 669 (8th Cir.
2006); see also 18 U.S.C. § 3553(a)(6). A sentencing judge reasonably could
conclude White’s age of 51 should reflect more maturity and intelligence when
dealing with child pornography, and that judge also reasonably could enhance White’s
sentence due to his age. Although relevant to the inquiry conducted under § 3553(a)
as a characteristic, White’s age does not justify the extent of the downward variance.
See Feemster, 483 F.3d at 590.

       The district court also varied downward in part based on White’s poor health,
specifically, White’s diabetes, high blood pressure, weak extremities, and difficulty
in walking. Again, although no longer mandatory, the Guidelines provide “[p]hysical
condition . . . is not ordinarily relevant in determining whether a sentence should be
outside the applicable guideline range.” U.S.S.G. § 5H1.4, p.s. Moreover, despite his
health, White has painted signs, repaired a garbage truck, occasionally hauled garbage,

                                         -26-
                                          26
and annually set up and torn down a haunted house. White’s health has little, if any,
relevance and is not so extraordinary as to justify the extent of the downward variance.
See United States v. Ture, 450 F.3d 352, 359 (8th Cir. 2006).

       Finally, the district court varied in part based on White’s lack of criminal
history. White’s criminal history calculation used in the advisory Guideline
sentencing range expressly accounted for White’s lack of criminal history and
likelihood of recidivism.8 See United States v. Garate, 482 F.3d 1013, 1017 (8th Cir.
2007), petition for cert. filed, (No. 07-5051) (June 28, 2007); United States v.
McDonald, 461 F.3d 948, 953 (8th Cir. 2006), petition for cert. filed, (No. 06-8086)
(Nov. 28, 2006). The district court’s downward variance based on White’s lack of
criminal history and likelihood of recidivism places undue weight on factors already
accounted for by the Guidelines.

       The panel opinion also compares White’s actions to what charges could be filed
against White in Iowa state courts. A hypothetical conviction under Iowa law is not
a relevant consideration in deciding the reasonableness of White’s federal sentence.
See United States v. McCormick, 474 F.3d 1012, 1014 (8th Cir. 2006); United States
v. Jeremiah, 446 F.3d 805, 807-08 (8th Cir. 2006).

      Thus, I respectfully dissent.




      8
        In passing, the district court briefly noted a “psychological concern.” The
panel opinion interprets this reference to mean the district court concluded White had
a low likelihood of recidivism. At sentencing, the district court never specifically
addressed the psychological reports discussed in the panel opinion’s footnote 4.
Moreover, Dr. Smith concluded White was “at the low to moderate risk level” and the
district court recommended White be considered to participate in the sex offender
treatment program, although Dr. Rosell concluded White was a low risk and did not
require sex offender specific treatments.

                                         -27-
                                          27
