United States of America v. Joe Horning, also known as Joe Louis Horning

United States Court of Appeals
For the Eighth Circuit
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No. 18-1144
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Joe Horning, also known as Joe Louis Horning
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Council Bluffs
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Submitted: December 10, 2018
Filed: March 14, 2019
[Unpublished]
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Before LOKEN, MELLOY, and ERICKSON, Circuit Judges.
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PER CURIAM.
In 2017, Defendant Joe Horning pled guilty to accessing or attempting to
access child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). The

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district court sentenced Horning to 188 months’ imprisonment after applying a five-1
level enhancement under United States Sentencing Guidelines (“U.S.S.G.”)
§ 2G2.2(b)(5) for “engag[ing] in a pattern of activity involving the sexual abuse or
exploitation of a minor.” Horning appeals, arguing the district court erred in finding
the evidence sufficient to establish a pattern of child sexual abuse. We affirm.
I. Background
Prior to Horning’s sentencing, a presentence investigation report (“PSR”) was
created. The PSR recommended a number of enhancements, including the five-level
enhancement for engaging in a pattern of child sexual abuse that is at issue in this
case. The basis for that enhancement was Horning’s 2001 Iowa conviction for third-
degree sexual abuse of a seven-year-old girl. At sentencing, Horning objected to the
five-level enhancement, arguing that the single 2001 conviction did not establish that
he had engaged in a pattern of child sexual abuse, which is defined as “any
combination of two or more separate instances of the sexual abuse or sexual
exploitation of a minor.” U.S.S.G. § 2G2.2(b)(5) cmt. n.1. To support the
enhancement, the government offered five exhibits, including a certified copy of the
state presentence report (“State PSR”) from Horning’s sentencing for the 2001
conviction.
The State PSR contained an official version of the events, Horning’s version
of the events, and the victim’s version of the events. The government argued that
both the official version of the events and the victim’s version of the events
established that Horning had engaged in a pattern of child sexual abuse. For instance,
the official version, which was created by the Audubon Police Chief and a
Department of Human Services Child Protective worker, noted that “Horning had told
The Honorable Rebecca Goodgame Ebinger, United States District Judge for1
the Southern District of Iowa.
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[Victim] not to tell about other times because they would get in trouble.” And, the
victim’s version, which was provided by the victim’s mother, stated that “[Victim’s
father] asked if [Horning] had done this before and [Victim] said that he had.”
Horning countered that both the official version and the victim’s version of the events
were not reliable for sentencing purposes.
The district court found that there was “sufficient indicia of reliability for the
official version and the victim’s version to be admitted.” The court first noted that
state PSRs are prepared by order of the court and are relied upon by state court
judges. It then found that the official version detailed a tight timeline of events which
“heighten[ed] the reliability of the information contained there.” Finally, the district
court determined that, while Horning’s version of the events “states, ‘I didn’t do
anything intentionally,’ the facts he admit[ted] to are . . . facts that show a pattern of
sexual conduct beyond one instant interaction.” Finding the State PSR reliable, the
district court concluded there was sufficient evidence that Horning had engaged in
a pattern of child sexual abuse and applied the five-level enhancement. The
enhancement resulted in a Guidelines range of 188 to 235 months’ imprisonment and
the district court sentenced Horning to 188 months’ imprisonment. Without the
enhancement, the Guidelines range would have been 120 to 137 months’
imprisonment.
II. Standard of Review
“We review the district court’s application of the Guidelines and imposition of
sentencing enhancements de novo.” United States v. Norwood, 774 F.3d 476, 479
(8th Cir. 2014). We review the district court’s “factual findings for clear error.”
United States v. Griffin, 482 F.3d 1008, 1011 (8th Cir. 2007).
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III. Discussion
“In sentencing, ‘the court may consider relevant information without regard
to its admissibility under the rules of evidence applicable at trial, provided that the
information has sufficient indicia of reliability to support its probable accuracy.’”
United States v. Pepper, 747 F.3d 520, 524 (8th Cir. 2014) (quoting U.S.S.G.
§ 6A1.3). “The corroboration of a declarant’s statement provides sufficient indicia
of reliability to support the statement’s probable accuracy.” Id.
We focus on the reliability of the State PSR’s official version of events
because, alone, it is sufficient to establish that Horning engaged in a pattern of child
sexual abuse. The official version first describes the events that served as the basis
for Horning’s 2001 conviction. It notes that while Horning was babysitting the victim
at her house, he touched her genitals with his fingers, mouth, and genitals. After
Horning left, she immediately reported the abuse to her father. Her parents then took
her to the hospital where doctors discovered injuries consistent with her report. The
official version goes on to describe additional events that suggest Horning engaged
in a pattern of child sexual abuse. It notes that the victim reported “Horning had told
her not to tell about other times” and briefly describes additional instances of sexual
abuse, including Horning performing oral sex on the victim and Horning asking the
victim to masturbate him.
Though hearsay, the official version had sufficient indicia of reliability to be
used by the district court. Indeed, Horning’s own version of the events corroborates
the official version. See United States v. Chambers, 878 F.3d 616, 620 (8th Cir.
2017) (finding district court did not err in relying on victim’s statements as evidence
because the defendant “himself corroborated the . . . statements and effectively
admitted to the crime”). For instance, Horning states in his version of events that (1)
“I might’ve, when I done blow kisses . . . I mighta went down a little bit;” (2) “If it
did hap, that was just I got too close of blowin’ her stomach;” (3) “[S]he’s mighta
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grabbed my [genitals] before;” (4) “I’m sorry if it all comes down to that I done
somethin’ to her.” These statements arguably constitute admissions. But, at the very
least, they support the official version’s “probable accuracy.” Pepper, 747 F.3d at
524. Thus, the district court did not err in finding the official version reliably
established that Horning engaged in a pattern of child sexual abuse.
IV. Conclusion
Accordingly, we affirm the judgment of the district court.
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