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United States v. Vanhorn

United States Court of Appeals, Eighth Circuit

January 10, 2014

UNITED STATES of America, Plaintiff-Appellee
v.
Joseph VANHORN, Defendant-Appellant.

Submitted: Nov. 22, 2013.

Page 1167

Patrick J. O'Connor, Kansas City, MO, for appellant.

James J. Kelleher, Asst. U.S. Atty., Springfield, MO (Tammy Dickinson, U.S. Atty., Kansas City, MO, on the brief), for appellee.

Before BENTON, BEAM, and SHEPHERD, Circuit Judges.

Page 1168

BENTON, Circuit Judge.

Joseph A. Vanhorn was found guilty of sexual exploitation of a minor in violation of 18 U.S.C. § 2251(a) and 2251(e). The district court [1] sentenced him to 220 months' imprisonment. He appeals, arguing the district court misinterpreted the word " uses" in 18 U.S.C. § 2251(a), abused its discretion in sentencing him, and imposed a sentence violating the Eighth Amendment. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

This court reviews de novo issues of statutory construction. United States v. Sutton, 625 F.3d 526, 528 (8th Cir.2010), citing United States v. Barraza, 576 F.3d 798, 806 (8th Cir.2009). Vanhorn argues that the district court gave an overly broad meaning to the word " uses" in 18 U.S.C. § 2251(a):

Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in ... any sexually explicit conduct for the purpose of producing any visual depiction of such conduct ... shall be punished as provided under subsection (e)....

Vanhorn photographed the minor victim in sexually explicit positions. The " use" component is " fully satisfied for the purposes of the child pornography statute if a child is photographed in order to create pornography." United States v. Fadl, 498 F.3d 862, 866 (8th Cir.2007), quoting United States v. Sirois, 87 F.3d 34, 41 (2d Cir.1996). Vanhorn claims that this interpretation of the word " uses" is superseded by the Supreme Court's later analysis in United States v. Williams, 553 U.S. 285, 294-95, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008).

In Williams, the Supreme Court examined for overbreadth a related statute, 18 U.S.C. § 2252A(a)(3)(B):

Any person who ... knowingly ... advertises, promotes, presents, distributes, or solicits through the mails, or using any means or facility of interstate or foreign commerce ... an obscene visual depiction of a minor engaging in sexually explicit conduct.

The Supreme Court concluded that the words " promotes" and " presents" should be narrowly interpreted. Williams, ...


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