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United States v. Shelabarger

United States Court of Appeals, Eighth Circuit

October 21, 2014

United States of America, Plaintiff - Appellee
v.
Benjaman Shelabarger, also known as Benjamin Shelabarger, Defendant - Appellant

Submitted September 11, 2014

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

For United States of America, Plaintiff - Appellee: Craig Peyton Gaumer, Assistant U.S. Attorney, Marc Krickbaum, Assistant U.S. Attorney, Maureen McGuire, Assistant U.S. Attorney, U.S. Attorney's Office, Des Moines, IA.

For Benjaman Shelabarger, also known as: Benjamin Shelabarger, Defendant - Appellant: Bernard John Burns III, Assistant Federal Public Defender, Federal Public Defender's Office, Southern District of Iowa, Des Moines, IA.

Benjaman Shelabarger, also known as: Benjamin Shelabarger, Defendant - Appellant, Pro se, Rochester, MN.

Before WOLLMAN, LOKEN, and MURPHY, Circuit Judges.

OPINION

Page 715

WOLLMAN, Circuit Judge.

Benjaman Shelabarger was convicted by a jury of receipt of visual depictions of minors engaging in sexually explicit conduct. The district court[1] imposed a sentence of 210 months' imprisonment. Shelabarger appeals, arguing that the evidence was insufficient to support his conviction, that his sentence violates the Eighth Amendment, and that the district court incorrectly calculated his offense level under the United States Sentencing Guidelines (U.S.S.G. or Guidelines). We affirm.

I.

On January 2, 2013, Immigration and Customs Enforcement Special Agent Aaron Simon downloaded and identified child

Page 716

pornography being shared through a file-sharing program from an IP address in the area of Waukee, Iowa. Simon and his team obtained a warrant and searched the home associated with the IP address. Shelabarger lived at the home with his half sister Angela Fyler, her mother, and his nephew N.F. After a forensic preview, Simon and his team seized several computers and data storage devices that they suspected might contain child pornography. One of the devices seized was one of Shelabarger's laptops. Simon testified that when he interviewed Shelabarger, Shelabarger admitted to being the sole user of the laptop, to having an intermediate understanding of computers and a familiarity with filesharing programs, and to using the ARES file-sharing program. Forensic analysis of the laptop revealed several files containing child pornography. Some time after the initial search warrant was executed, Fyler contacted Simon about SD cards she and her mother had found inside a box of matches retrieved from Shelabarger's room. Fyler testified that she had given Shelabarger the matchbox as a Christmas gift. Forensic analysis revealed that the SD cards contained numerous images and videos that constituted child pornography, as well as link files showing that child pornography on the cards had been viewed on Shelabarger's laptop.

Evidence at trial indicated that four months before the search warrant was executed, Shelabarger had found pornography on the family's shared computer. The forensic preview, however, did not reveal any traces of child pornography on that computer, and Fyler testified at trial that although they had confronted N.F. about pornography found on the main computer, they had found only adult and animated pornography. The government also presented evidence that many of the files containing child pornography had time stamps that corresponded with times when N.F. was in school. Shelabarger testified that Simon had put a gun in his face when he and his ...


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