Submitted: June 13, 2016
from United States District Court for the Western District of
Missouri - Kansas City.
SMITH, MELLOY, and GRUENDER, Circuit Judges.
Clarke appeals his sentence of 360 months in prison for the
production and attempted production of child pornography,
alleging that the district courtimposed an unreasonable
sentence. We affirm.
became the subject of a Prairie Village (Kansas) Police
Department investigation after a woman reported finding a
text conversation between Clarke and her fifteen-year-old
daughter (Victim 1) on her cell phone. Clarke and Victim 1
exchanged text messages about arranging a photo shoot.
Following an initial photo shoot, Clarke continued to message
Victim 1 to schedule additional photo shoots.
1 told officers that, following the text conversation, Clarke
picked her up at a park in Kansas and drove her to his
apartment in Missouri. Clarke took nude digital photos and
videos of Victim 1. During one of the video recordings,
Clarke rubbed his penis on Victim 1's vagina. Victim 1
was able to identify a photo of Clarke and the location of
his apartment. Officers arrested Clarke and found additional
sexually explicit photos and videos of young girls.
also learned that Clarke had physically abused his biological
daughter (Victim 2). Victim 2 told officers that, when she
was eleven years old, Clarke began taking photos of her
undressing and videos of him sexually abusing her. Officers
found three videos of Victim 2 recorded when she was thirteen
years old. In addition, Clarke's ex-girlfriend had
reported sexual abuse against Victim 2 several years earlier,
but investigators did not find sufficient evidence to bring
charges at that time.
the current investigation, Clarke was indicted on one count
of production of child pornography and one count of attempted
production of child pornography, in violation of 18 U.S.C.
§ 2251(a) and (e). Clarke pleaded guilty to both counts.
The Presentence Investigation Report ("PSR")
recommended that, based on a total offense level of 42 and
criminal history category I, Clarke's advisory guideline
range was 360 months to life in prison. Clarke was also
subject to a fifteen-year mandatory minimum.
sentencing, Clarke argued to the district court that he
should receive a below-guidelines sentence of fifteen years
because of his lack of criminal history, his mental
condition, his lack of illegal drug use, and his employment.
The district court determined that a sentence of 360 months
in prison was appropriate. Specifically, the district court
noted that Clarke victimized two girls, including his
biological daughter and that the § 3553(a) factors
supported the sentence. Clarke appeals.
appeal, Clarke argues that the sentence is substantively
unreasonable. We review the substantive reasonableness of a
sentence "under a deferential abuse-of-discretion
standard." United States v. Webster, 820 F.3d
944, 945 (8th Cir. 2016). A sentence is substantively
unreasonable when the district court: "(1) fails to
consider a relevant factor that should have received
significant weight; (2) gives significant weight to an
improper or irrelevant factor; or (3) considers only the
appropriate factors but in weighing those factors commits a
clear error of judgment." United States v.
Sigsbury, 817 F.3d 1114, 1115 (8th Cir. 2016) (quoting
United States v. Feemster, 572 F.3d 455, 461 (8th
Cir. 2009) (en banc)). Further, "[i]f the
defendant's sentence is within the Guidelines range, then
we may . . . apply a presumption of reasonableness."
Id. (quoting Feemster, 572 F.3d at 461).
argues that the district court imposed an unreasonable
sentence that was greater than necessary to satisfy the
statutory goals of sentencing. In particular, Clarke contends
that the district court gave undue weight to the fact that
Victim 2 was Clarke's biological daughter. Further, he
argues that the district court did not consider Clarke's
lack of criminal history, his strong employment history, or
his mental difficulties as mitigating factors.
reviewed the record, we conclude the sentenced imposed by the
district court was substantively reasonable. First, Clarke
was sentenced within the advisory guidelines range of 360
months to life in prison. Second, the district court
specifically noted that it had considered the § 3553(a)
factors in determining Clarke's sentence. "A
district court has substantial leeway in deciding how to
weigh the § 3553(a) factors." United States v.
Sholds, ___ F.3d ___, 2016 WL 3568058 (8th Cir. July 1,
2016). In this case, Clarke created sexually explicit photos
and videos of two young girls. The fact that Clarke has a
record of steady employment and no criminal history does not
render his sentence unreasonable. Further, a medical
evaluation performed in advance of sentencing characterized