United States of America v. Abraham Christopher Smith

United States Court of Appeals
For the Eighth Circuit
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No. 21-3473
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United States of America
Plaintiff - Appellee
v.
Abraham Christopher Smith
Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Central
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Submitted: May 9, 2022
Filed: July 8, 2022
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Before SMITH, Chief Judge, WOLLMAN, and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
Abraham Christopher Smith pled guilty to enticing a minor, in violation of 18
U.S.C. § 2422(b). On appeal, Smith argues that the district court1 procedurally erred
by cross-referencing United States Sentencing Guidelines § 2G1.3(c)(1), which
applies where the defendant caused the minor victim to engage in sexually explicit
1 The Honorable Stephanie M. Rose, Chief Judge, United States District Court
for the Southern District of Iowa.

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conduct for the purpose of producing a visual depiction of that conduct. He also
argues that his sentence is substantively unreasonable. Having jurisdiction pursuant
to 28 U.S.C. § 1291, we affirm Smith’s sentence.
I.
Smith, who at the time of the instant offense was 38 and 39 years old,2 worked
as a science teacher at Southeast Polk High School in Polk County, Iowa. The
victim, a 15-year-old female student, was in Smith’s class, was tutored by Smith,
and was part of the school’s astronomy club, of which Smith was the leader. The
parents of the victim became suspicious of the nature of Smith’s contact with their
daughter, and on October 26, 2020, the victim’s mother contacted the police. On
October 28, police interviewed the victim, and she explained that she had, among
other things, engaged in sexual intercourse with Smith on two occasions, once in her
bedroom and once at a nearby park. A search of the victim’s cell phone revealed
that she and Smith had exchanged more than 1,000 text messages, many of which
were sexually graphic. The messages included highly detailed discussions of
Smith’s sexual fantasies. Then, after having tried some of those fantasies with the
victim, Smith would text the victim to discuss the encounter, asking the victim
questions about her pain and satisfaction levels while also narrating his own
experience. As relevant to this appeal, on October 16, Smith told the victim that he
would like her to perform oral sex on him and described, in detail, how he would
like himself and the victim to be positioned during that act.
The personal communications between the victim and Smith began after the
victim sought help from Smith for the mental health challenges that she had been
experiencing, and a review of the text messages exchanged by Smith and the victim
reveal that, interspersed throughout their sexually graphic conversations, the victim
2 Although this case only concerns Smith’s behavior during a three-week
period, from October 9, 2020, through October 29, 2020, the district court noted that
his birthday occurred during those three weeks, so he was both 38 and 39 during the
period of the instant offense.

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expressed suicidal ideation to Smith. Further, the text messages not only confirm
the victim’s account that she and Smith had engaged in sexual intercourse more than
once, but they also confirm that her young age was a central part of his sexual
gratification. He repeatedly referenced the fact that the victim was only 15 years old
and her small size. Smith went so far as to brag to the victim about how he had lied
to her parents by telling them that he was meeting the victim for tutoring when, in
fact, he was meeting the victim for sex.3
On October 28, 2020, pursuant to an arrest warrant, the police arrested Smith
at his home. A subsequent search of Smith’s cell phone revealed an app, referred to
throughout the record as the “photo vault,” that allowed him to restrict access to
photographs and videos stored on his cell phone using a Personal Identification
Number (PIN) or password. In the photo vault, police found: four topless
photographs of the victim; a video, dated October 24, 2020, of the victim performing
oral sex on Smith while in her bedroom; two videos of the victim masturbating; and
sexually explicit photographs and videos of Smith’s wife. The October 24 video,
which was approximately one minute and fifteen seconds in length, was taken by
Smith. The district court explained, and the parties do not dispute, that the positions
of Smith and the victim, as depicted in the video, matched the positioning described
by Smith in his October 16 text messages with the victim.4
A four-count indictment charged Smith with knowingly persuading, inducing,
and enticing and attempting to persuade, induce, and entice a minor to engage in
3 The record shows that, at some point during this three-week period, Smith
and the victim began using an app called “Telegram” to exchange messages rather
than relying on text messages. However, for simplicity, we refer to all messages
exchanged by Smith and the victim as text messages.
4 Although Smith does not dispute what the October 24 video depicted or the
positioning of himself or the victim in that video, he does dispute the government’s
argument that, because the positioning in the video matched the positioning that he
had described in his text messages to the victim, he had the requisite mens rea. See
infra Section II.

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sexual activity, in violation of 18 U.S.C. § 2422(b); knowingly receiving child
pornography depicting a minor, in violation of 18 U.S.C. § 2252A(a)(2), (b)(1);
knowingly employing, using, persuading, inducing, and enticing a minor to engage
in sexually explicit conduct for the purpose of producing a visual depiction of such
conduct, in violation of 18 U.S.C. § 2251(a), (e); and knowingly possessing material
containing images of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B),
(b)(2). Smith pled guilty to the first count, and the government dismissed the
remaining counts pursuant to the written plea agreement.
At sentencing, over Smith’s objection, the district court applied the
cross-reference found in USSG § 2G1.3(c)(1). The application of this
cross-reference resulted in a base offense level of 32. After applying five different
enhancements, as well as a three-level reduction for Smith’s acceptance of
responsibility, the district court calculated a total offense level of 42 and criminal
history category I, resulting in a Guidelines range of 360 months to life
imprisonment. The district court ultimately sentenced Smith to a below-Guidelines
sentence of 288 months imprisonment with 10 years supervised release, commenting
that it had difficulty choosing a sentence but “decided . . . that [Smith] shall remain
in prison until his victim is the same age that he was when he did this to her.” This
appeal follows.
II.
Smith first argues that the district court committed procedural error when it
applied the cross-reference found in USSG § 2G1.3(c)(1), and “[i]n reviewing a
sentence, we ‘“must first ensure that the district court committed no significant
procedural error.”’” United States v. Woods, 670 F.3d 883, 886 (8th Cir. 2012)
(citation omitted). “We review the district court’s factual findings for clear error
and its application of the Guidelines de novo.” United States v. Clark, 999 F.3d
1095, 1097 (8th Cir. 2021) (per curiam) (reviewing, for clear error, factual findings
supporting district court’s application of a cross-reference).

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When discerning the applicable base offense level for a defendant convicted
under 18 U.S.C. § 2422(b), a district court must look to USSG § 2G1.3, which, at
(c)(1), instructs the district court to apply USSG § 2G2.1 where “the offense
involved causing, transporting, permitting, or offering or seeking by notice or
advertisement, a minor to engage in sexually explicit conduct for the purpose of
producing a visual depiction of such conduct.” USSG § 2G1.3(c)(1) “is to be
construed broadly.” See USSG § 2G1.3(c)(1), comment. (n. 5(A)). USSG § 2G2.1
is the Guideline encompassing the sexual exploitation of a minor via the production
of sexually explicit visual material, or child pornography. It provides that the base
offense level for such offenses is 32 and lists additional enhancements to be applied
based on the specific facts of the offense.
At sentencing, Smith argued that the cross-reference was inapplicable because
the government had not proved, by a preponderance of the evidence, that he acted
with the purpose of “producing a visual depiction” of his sexual conduct with the
victim. He argued before the district court, and argues again on appeal, that he
spontaneously chose to record the victim performing oral sex and did not cause her
to perform oral sex on him for the purpose of creating the video. The district court
disagreed, finding persuasive the fact that there were multiple sexually explicit
photographs and videos in the photo vault which, the district court explained,
demonstrated that Smith had a repetitive interest in documenting his sexual
encounters. The district court also found persuasive the fact that Smith’s October
16 text messages to the victim detailed his interest in the exact sex act and
positioning that can be seen in the October 24 video. Ultimately, the district court
concluded that, because Smith told the victim of his fantasy before reenacting that
fantasy in a “very deliberate and explicit and careful manner,” his decision to record
the victim was not spontaneous.
Smith only disputes the district court’s conclusion that he did not act
spontaneously. When interpreting 18 U.S.C. § 2251(a), the criminal provision
containing almost-identical language to that which is found in USSG § 2G1.3(c)(1),
we have explained that the phrase “for the purpose of” sets forth a specific intent

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requirement. See United States v. Fortier, 956 F.3d 563, 566-67 (8th Cir. 2020)
(“This mens-rea element, because it requires a mental state ‘above and beyond’ the
intent to perform one of the acts listed in the statute, is called a specific intent.”).
We further explained that a defendant acts with the requisite specific intent where
one of his “‘dominant purposes’ was to create a visual depiction of his sexual acts
with the [victim].” Id. (citation omitted); see United States v. Raplinger, 555 F.3d
687, 693 (8th Cir. 2009) (explaining that producing a visual depiction need not be
the defendant’s “sole purpose for engaging in the sexual activity”).
It is clear from the undisputed facts that much of Smith’s sexual gratification
was derived from sexually explicit photographs and videos of the victim. He
received topless photos of her, as well as videos of her masturbating, on multiple
occasions. In the photo vault, alongside the October 24 video of the victim, officers
found sexually explicit photographs and videos of Smith’s wife, suggesting, as the
district court found, that one of Smith’s “dominant purposes” in his sexual
experiences (with both his wife and the victim) was to create visual depictions of
those experiences. We find that the district court did not clearly err in finding these
facts, and the district court, having relied on these facts, did not err in applying the
cross-reference found in USSG § 2G1.3(c)(1).
However, even assuming that Smith is correct and the district court erred in
applying the cross-reference, any such error was harmless. After announcing
Smith’s 288-month sentence, the district court explained:
[This sentence] is within the same range that would have applied had I
not applied the cross-reference. I would have given this same sentence
ultimately after considering all of the factors here, no matter how I
would have ruled on that particular cross-reference. This is a very
lengthy sentence, but it is one that, in my view, balances all of the
mitigating and aggravating factors involved.
We have previously explained that where, like here, a district court expressly
acknowledges the “potential impact of the specific error involved” before stating

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that it would select the same sentence absent that error, “[w]e need not even venture
an inference that the error had no effect on the court’s selection of the sentence”
because the district court answered that question expressly. United States v. Henson,
550 F.3d 739, 741 (8th Cir. 2008). Further, we have held, on numerous occasions,
that a procedural error is harmless where the district court would have imposed the
same sentence absent that error. See, e.g., United States v. Shell, 23 F.4th 803, 805
(8th Cir. 2022) (“A procedural error is harmless when it ‘did not substantially
influence the outcome of the sentencing proceeding,’ or in other words when ‘we
are convinced that the error did not affect the district court’s sentencing
conclusion.’” (citations omitted)); see also United States v. Sanchez-Martinez, 633
F.3d 658, 660-61 (8th Cir. 2010) (finding harmless error where, at sentencing, the
district court stated that regardless of its allegedly flawed calculation of the
Guideline range, it would have “end[ed] up at the same place, anyway”). Therefore,
because the district court expressly stated that it would impose a 288-month term of
imprisonment even absent application of the cross-reference, we find any procedural
error to be harmless.
Having found that the district court committed no procedural error, we now
move to Smith’s argument that his sentence is substantively unreasonable. See
United States v. Kirlin, 859 F.3d 539, 543 (8th Cir. 2017) (“If we discover no
procedural error, we then consider the substantive reasonableness of the sentence
imposed under a deferential abuse-of-discretion standard.” (citation omitted)). “A
sentence is substantively unreasonable if the district court ‘fails to consider a
relevant factor that should have received significant weight, gives significant weight
to an improper or irrelevant factor, or considers only the appropriate factors but
commits a clear error of judgment in weighing those factors.’” United States v.
Lozoya, 623 F.3d 624, 626 (8th Cir. 2010) (citation omitted). Further, “it is ‘nearly
inconceivable’ that a sentence is so high as to be substantively unreasonable and
constitute an abuse of discretion when the district court imposed a below-Guidelines
sentence.” United States v. Bevins, 848 F.3d 835, 841 (8th Cir. 2017) (citation
omitted).

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In Smith’s view, the district court relied on an “arbitrary formula” when
selecting his sentence, rendering his sentence substantively unreasonable. He
maintains that the district court “adequately discussed the [18 U.S.C. §] 3553(a) and
other relevant factors at sentencing but did not base Smith’s sentence on those
factors,” instead basing Smith’s sentence on its desire to imprison Smith for as long
as it will take for the victim to reach the same age that Smith was when he committed
this offense.
It is true that the district court referenced the relationship between the length
of Smith’s sentence and the victim’s age, explaining that it had difficulty choosing
a sentence but “decided . . . that [Smith] shall remain in prison until his victim is the
same age that he was when he did this to her.” However, we find that the district
court was merely making an observation as to how Smith’s sentence, chosen based
on the district court’s careful consideration of the § 3553(a) factors, paralleled with
the victim’s age. The district court expressly acknowledged the § 3553(a) factors
and stated that it had considered them before engaging in a detailed commentary of
those factors. The district court noted that Smith had a stable childhood, is generally
healthy, has two young children, is educated, and has a consistent employment
history. It found Smith’s role as the victim’s teacher to be extremely aggravating,
warranting a harsher punishment than if the victim had been a stranger to Smith.
The district court emphasized the fact that the victim, while struggling with her
mental health, had sought help from Smith, only to be exploited by him. Only at the
end of this thorough discussion did the district court make reference to what Smith
characterizes as an “arbitrary formula.” And, when explaining that it would have
chosen the same sentence even if it had not applied the cross-reference, discussed
supra, the district court confirmed that it chose Smith’s sentence based on its
“consider[ation] of the [§ 3553(a)] factors.” We are confident that the district court
did not give weight to an improper or irrelevant—or, as Smith frames it,
arbitrary—factor, see Lozoya, 623 F.3d at 626, and we further note that “it is ‘nearly
inconceivable’” that Smith’s below-Guidelines sentence is substantively
unreasonable, Bevins, 848 F.3d at 841 (citation omitted). Therefore, we find that
the district court did not abuse its discretion.

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III.
Finding no error, we affirm Smith’s sentence.
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