                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 19-1321
                         ___________________________

                                     United States

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                             Roger Erick Splettstoeszer

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
                          for the District of Minnesota
                                  ____________

                             Submitted: March 12, 2020
                               Filed: April 15, 2020
                                  ____________

Before ERICKSON, GRASZ, and KOBES, Circuit Judges.
                           ____________

GRASZ, Circuit Judge.

       Roger Splettstoeszer was charged with distribution, possession, and receipt of
child pornography. At trial, the district court1 admitted evidence that Splettstoeszer
had sexually abused his daughter and stepdaughter years prior. He was convicted and

      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
sentenced to 210 months of imprisonment. Splettstoeszer appeals both the conviction
and the sentence. We affirm.

                                  I. Background

      Roger Splettstoeszer owned a computer repair shop in Aitkin, Minnesota. FBI
agents determined that child-pornography files were being downloaded and shared
from the computer shop’s IP address. The agents obtained a warrant to search the
shop and seize any electronic devices that might contain child pornography.

       After executing the warrant, the FBI agents found hundreds of child-
pornography videos and images stored on the electronic devices in Splettstoeszer’s
shop. As the FBI agents soon discovered, Splettstoeszer’s computer files, internet
history, and file-sharing data indicated pornographic content related to pre-pubescent
girls and father-daughter incest.

       At trial, the government sought to introduce evidence that Splettstoeszer had
pled guilty to molesting his daughter and stepdaughter in the 1990s. Splettstoeszer
objected, arguing the evidence was inadmissible under Federal Rules of Evidence 404
and 414. The district court rejected Splettstoeszer’s argument and admitted the
evidence. Ultimately, the jury found Splettstoeszer guilty of child pornography
distribution under 18 U.S.C. § 2252(a)(2) and (b)(1), receipt of child pornography
under 18 U.S.C. § 2252(a)(2) and (b)(1), and possession of child pornography under
18 U.S.C. § 2252(a)(4)(B) and (b)(2).

      In accord with the United States Sentencing Guidelines (“Guidelines”), the
government recommended a 1,440-month prison sentence for Splettstoeszer’s crimes.
The district court acknowledged this harsh recommendation, but imposed instead a
sentence of 210 months of imprisonment.



                                         -2-
                                     II. Analysis

      Splettstoeszer raises two issues on appeal. First, he challenges the district
court’s admission of evidence disclosing his past sexual crimes. Second, he
challenges the reasonableness of his sentence. We address his arguments in turn.

                         A. Admissibility Under Rule 414

       The district court found the evidence of Splettstoeszer’s prior sexual abuse
convictions admissible. We review a district court’s evidentiary rulings for abuse of
discretion. United States v. Emmert, 825 F.3d 906, 909 (8th Cir. 2016).

       According to Federal Rule of Evidence 414, when a criminal defendant is
accused of child molestation — including child-pornography crimes under 18 U.S.C.
chapter 110 — “the court may admit evidence that the defendant committed any other
child molestation.” Fed. R. Evid. 414(a), (d)(2)(B). “The evidence can be used for
any purpose for which it is relevant, ‘including the defendant’s propensity to commit
such offenses.’” Emmert, 825 F.3d at 909 (quoting United States v. Gabe, 237 F.3d
954, 959 (8th Cir. 2001)). However, the balancing test described in Federal Rule of
Evidence 403 still applies to evidence admissible under Rule 414. United States v.
Furman, 867 F.3d 981, 988 (8th Cir. 2017). That is, the district court “may exclude
relevant evidence if its probative value is substantially outweighed by a danger of . . .
unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time,
or needlessly presenting cumulative evidence.” Fed. R. Evid. 403.

       Our decision in Emmert is on point. In Emmert, the defendant was charged
with child-pornography crimes. 825 F.3d at 908. Under Rule 414, the district court
admitted evidence that the defendant had sexually abused minors twenty years prior.
Id. To prevent unfair prejudice under Rule 403, the district court issued a limiting
instruction to the jury. Id. On appeal, the defendant argued his prior sexual-abuse

                                          -3-
conviction was too remote from and dissimilar to the presently-charged child-
pornography crimes. Id. at 909. Splettstoeszer’s case presents us with the same
scenario.

       Splettstoeszer nevertheless argues the evidence is inadmissible and unfairly
prejudicial. According to Splettstoeszer, his previous conviction was not probative
of a material issue at trial. We disagree. Evidence of his past child molestation is
particularly probative insofar as his conduct — sexually abusing his daughter and
stepdaughter — tracks the father-daughter-incest files and searches on his computers.
See Furman, 867 F.3d at 988 (finding the defendant’s past sexual assault of his
children probative of his interest, intent, and motive for distributing, receiving, and
possessing child pornography). Moreover, Rule 414 evidence can be used to show
a defendant’s propensity to be sexually interested in minors. See Emmert, 825 F.3d
at 909. And while Rule 403 cautions against creating “unfair prejudice,” prejudicial
Rule 414 evidence indicating the defendant’s propensity to sexually exploit children
is not, in itself, unfair. Fed. R. Evid. 403 (emphasis added); see United States v.
Hollow Horn, 523 F.3d 882, 888 (8th Cir. 2008); see also Furman, 867 F.3d at 988.
We therefore find no abuse of discretion.

                 B. Reasonableness of Splettstoeszer’s Sentence

       Splettstoeszer contends that his 210-month sentence is substantively
unreasonable. “We review all sentences, whether inside or outside the Guidelines
range, under a deferential abuse of discretion standard.” United States v. Pepper, 518
F.3d 949, 951 (8th Cir. 2008). “[W]here a district court has sentenced a defendant
below the advisory guidelines range, it is nearly inconceivable that the court abused
its discretion in not varying downward still further.” United States v. Spencer, 700
F.3d 317, 322 (8th Cir. 2012) (quoting United States v. Moore, 581 F.3d 681, 684
(8th Cir. 2009)).



                                         -4-
      We regularly uphold sentences similar to Splettstoeszer’s for child-
pornography convictions. See, e.g., United States v. Sebert, 899 F.3d 639, 640–41
(8th Cir. 2018) (affirming 240-month sentence); Emmert, 825 F.3d at 908, 910
(same); United States v. Moore, 572 F.3d 489, 490, 492 (8th Cir. 2009) (affirming
210-month sentence).

       But Splettstoeszer claims the district court was influenced by the unduly harsh
Guidelines-recommended sentence proposed by the government. The Guidelines, he
argues, unfairly generate steep penalties for child pornographers and get in the way
of individualized sentencing. And the government, he insists, wanted a long sentence
to punish him for his largely unpunished crimes against his daughter and
stepdaughter. Contrary to Splettstoeszer’s claims, however, the district court
provided an individualized sentence. Relying on the factors outlined in 18 U.S.C.
§ 3553(a) — and never indicating a desire to punish Splettstoeszer for other crimes —
the court varied downward considerably from the sentence recommended by both the
Guidelines and the government. It did not abuse its discretion.

                                  III. Conclusion

       The district court did not abuse its discretion by admitting the Rule 414
evidence, nor did it abuse its discretion at sentencing. We therefore affirm both
Splettstoeszer’s conviction and sentence.

                       ______________________________




                                         -5-
