United States of America v. Robert Franke, III

United States Court of Appeals
For the Eighth Circuit
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No. 19-3716
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United States of America
Plaintiff - Appellee
v.
Robert Franke, III
Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
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Submitted: September 21, 2020
Filed: December 15, 2020
[Unpublished]
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Before KELLY, WOLLMAN, and STRAS, Circuit Judges.
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PER CURIAM.
Robert Franke, III received a 360-month prison sentence after he pleaded
guilty to producing child pornography. See 18 U.S.C. § 2251(a). Although Franke
challenges the sentence on both procedural and substantive grounds, we affirm.

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The procedural challenge is based on the district court’s1 decision to vary
upward from the recommended Guidelines range, which was 210 to 262 months in
prison, to the statutory maximum. See 18 U.S.C. § 2251(e). Franke claims that the
court failed to explain why it gave him such “an unusually harsh sentence.” Gall v.
United States, 552 U.S. 38, 46 (2007).
Contrary to Franke’s argument, however, the district court explained exactly
why it varied upward. Specifically, Franke did not just produce child pornography,
he “essentially raped [his] daughter from the time she was 12 until she was 15” and
encouraged her to take drugs and alcohol beforehand to “loosen . . . up.” To use the
district court’s words, these acts were “way outside the bounds of a normal child
pornography situation.” Even if the variance here was a “major” one, United States
v. Martinez, 821 F.3d 984, 990 (8th Cir. 2016) (quoting Gall, 552 U.S. at 50), the
explanation for it was sufficient.
Franke also challenges the substantive reasonableness of the sentence, in part
because he believes the district court “double counted” several facts. Among them
were that the “offense involved . . . the commission of a sexual act or sexual
contact,” U.S.S.G. § 2G2.1(b)(2)(A) (providing for a two-level enhancement); the
victim was younger than 16, id. § 2G2.1(b)(1)(B) (same); and he “was a parent,” id.
§ 2G2.1(b)(5) (same). The court first counted them, he explains, by increasing the
offense level, and then again by relying on them as reasons to vary upward. See
Martinez, 821 F.3d at 989–90 (accepting a similar argument). As we have
recognized, however, nothing prevents a district court “from determining that the
weight the Guidelines assigned to a particular factor [is] insufficient,” provided that
it “take[s] care in doing so.” United States v. Thorne, 896 F.3d 861, 865 (8th Cir.
2018). It did so here by tying the variance, at least in part, to the nature and length
of the sexual abuse.
1 The Honorable James M. Moody, Jr., United States District Judge for the
Eastern District of Arkansas.

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We reach a similar conclusion about Franke’s attempts to persuade his
daughter to use drugs and alcohol. He points out that he never succeeded in having
her try either one, and even if he had, the range still would have been lower than the
sentence he actually received. See U.S.S.G. § 2G2.1(b)(2)(B). Still, the court had
the discretion to consider his efforts as part of “the nature and circumstances of the
offense.” 18 U.S.C. § 3553(a); see United States v. Nguyen, 829 F.3d 907, 926 (8th
Cir. 2016) (acknowledging the district court’s “wide latitude” to weigh the statutory
sentencing factors). And to the extent he wishes they would have played a less
prominent role in the court’s decision to vary upward, this “alone does not justify
reversal.” United States v. Townsend, 617 F.3d 991, 994 (8th Cir. 2010) (per
curiam).
We accordingly affirm the judgment of the district court.
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