20-3322
United States v. Osuba




                                  In the
           United States Court of Appeals
                         For the Second Circuit


                             August Term, 2022
                               No. 20-3322

                         UNITED STATES OF AMERICA,
                                  Appellee,

                                     v.

                            MATTHEW R. OSUBA,
                            Defendant-Appellant.



 On Appeal from a Judgment of the United States District Court for
               the Northern District of New York.



                         ARGUED: FEBRUARY 27, 2023
                          DECIDED: APRIL 17, 2023

        Before: CALABRESI, PARK, and NARDINI, Circuit Judges.



      A jury convicted Matthew Osuba of violating 

(a), which prohibits using a minor to engage in sexually explicit
conduct for the purpose of producing a visual depiction of
that conduct. The jury also convicted Osuba of possessing and
distributing child pornography, in violation of 18 U.S.C. § 2252A,
based on different images found on his phone. The United States
District Court for the Northern District of New York (Thomas J.
McAvoy, Judge) sentenced Osuba to 70 years in prison. Osuba argues
that the evidence was insufficient to convict him on the production
charge, that the district court erred in applying a sentencing
enhancement based on a finding that he was a repeat and dangerous
offender, and that his sentence was substantively unreasonable.
Finding no error, we AFFIRM Osuba’s conviction and sentence.


                         CARINA H. SCHOENBERGER, Assistant
                         United States Attorney, for Carla B.
                         Freedman, United States Attorney for the
                         Northern District of New York, Syracuse,
                         NY, for Appellee.

                         RICHARD D. WILLSTATTER (Theodore S.
                         Green, on the brief), Green & Willstatter,
                         White Plains, NY, for Defendant-Appellant.


WILLIAM J. NARDINI, Circuit Judge:

      A jury found Matthew Osuba guilty of one count of using a

minor to engage in sexually explicit conduct for the purpose of

producing a visual depiction of that conduct in violation of 

(a), (e); one count of possessing child pornography in violation

of 18 U.S.C. § 2252A(a)(5)(B); and one count of distributing child



                                     2
pornography in violation of 18 U.S.C. § 2252A(a)(2)(A). The United

States District Court for the Northern District of New York (Thomas

J. McAvoy, Judge) sentenced Osuba to a total of 70 years in prison.

Osuba challenges his conviction on the first count, arguing that his

conduct—filming himself masturbating toward a clothed, sleeping

minor—was not criminal under the statute. He also challenges both

the imposition of a sentencing enhancement for repeat and dangerous

offenders and the substantive reasonableness of his sentence. Because

Osuba took actions designed to depict the minor as the passive

recipient of his sexual actions, we conclude, on the particular facts of

this case, that there was sufficient evidence for a jury to conclude

beyond a reasonable doubt that Osuba used the minor to engage in

sexually explicit conduct. We further conclude that the evidence

supported the enhancement and that the sentence was not shockingly

high in light of Osuba’s conduct.        Accordingly, we affirm the

judgment of the district court.




                                   3
I.     Background 1

       In August or September 2018, Matthew Osuba was in the living

room of his girlfriend’s house, talking to someone over Kik

Messenger, an instant-messaging app. His girlfriend’s seventeen-

year-old daughter was sleeping, fully clothed, on the couch in the

same room, with her face turned away from him. At some point,

Osuba turned on his camera and recorded two short videos. They

show him masturbating close to the minor—first sitting or lying near

the couch, then standing over the minor and ejaculating toward her.

He was “getting off,” he later said, to “the image of [the teenage girl]

on the couch.” Gov’t. Ex. 18-C at 2:03. “I came on her,” he told the

other Kik user, attaching the videos. 2 Gov’t. Ex. 18-J at 0:12.

       Osuba frequently discussed child abuse on Kik.                        In one

conversation, with Lisbet Fjostad, a woman he met on the app, Osuba



       1 Unless otherwise specified, we rely on the district court’s factual findings,
which were in turn adopted from the statement of facts in the Presentence
Investigation Report.
       2 Apparently, Osuba’s ejaculate just missed the minor’s arm.




                                          4
claimed to have sexually abused his four-year-old daughter, E, on

multiple occasions, giving graphic details of his physical contact with

her genitalia. 3 In a different Kik conversation, this time with an

undercover officer, Osuba recounted yet more abuse of E, again

describing the same sort of direct sexual contact. “I mostly do it when

she is sleeping,” he said. Presentence Investigation Report ¶ 17.

       Osuba also used Kik to send Fjostad pornographic images of

children. She reported three such images to law enforcement, one of

which Osuba claimed showed a child he had abused. When officers,

tipped off by Fjostad, searched Osuba’s cell phone, they found even

more pornographic images of children. Questioned by the police,

Osuba described his statements on Kik as mere fantasies and denied

having actually abused any children.

       Osuba was charged with sexual exploitation of a child by

producing a visual depiction in violation of 

(a) (Count


       3Pursuant to Federal Rule of Criminal Procedure 49.1(a)(3), we refer to
minor victims and their relatives (other than Osuba) by their initials.




                                      5
One, “the production charge”); distribution of child pornography in

violation of 18 U.S.C. §§ 2252A(a)(2)(A), 2252A(b)(1), and 2256(8)(A)

(Count Two); and possession of child pornography in violation of 18

U.S.C. §§ 2252A(a)(5)(B), 2252A(b)(2), and 2256(8)(A) (Count Three).

After a three-day trial, the jury convicted Osuba on all counts.

      Osuba’s Presentence Investigation Report (PSR) calculated that

his offense conduct and relevant conduct, considered together,

merited a total offense level of 43, the highest possible, under the

United States Sentencing Guidelines.       That calculation included

several upward adjustments that Osuba does not challenge on appeal,

and one upward adjustment that he does: an enhancement under

U.S.S.G. § 4B1.5(b)(1), which adds five levels when the defendant is a

repeat and dangerous sexual offender. To establish the pattern of

sexual abuse necessary for the enhancement, the PSR relied on the

two separate videos underlying Osuba’s production conviction. The




                                   6
PSR also noted its conclusion that Osuba had sexually abused E on

several occasions.

      In addition to Osuba’s Kik conversations, the evidence that

Osuba abused E included police interviews with E; her brother, B; and

their mother, K. Both E and B initially denied having been abused by

anyone. But after K raised further concerns, E told the police in a

second interview that Osuba had used a sexual device on her. And B,

although he at first called the story “a lie,” later described a device

belonging to Osuba that matched E’s description. Osuba told the

police that he fantasized about having sex with E but denied having

abused her.

      Osuba’s sentencing memorandum included a copy of a 2018

child protective services report stating that allegations Osuba had

sexually abused E were “unsubstantiated,” and that the agency had

found no credible evidence that a child was abused or maltreated.




                                  7
Sealed App’x 17–18.      Osuba claimed that his Kik conversations

reflected “fantasies and not actual events.” Id. at 3.

      The district court adopted the factual information and the

Guidelines calculation set forth in the PSR. The court found by a

preponderance of the evidence that Osuba had “sexually abused

multiple minors.” App’x 202–03. Osuba’s statements on Kik, the

court said, “corroborate[d] the sexual abuse of” E. Id. at 203. The

court also highlighted videos found on Osuba’s laptop showing him

masturbating into the underwear of his ex-girlfriend’s underage

daughter, child pornography found on Osuba’s devices, and Osuba’s

internet searches for child pornography. Osuba had not accepted

responsibility or expressed remorse, the court concluded, and he was

“dangerous to children,” “dangerous to [himself],” and “dangerous

to the public.” Id. at 200, 209. Reasoning that the shock of arrest had

deterred Osuba “for the present,” the court concluded that its job was

to deter him “in the future.” Id. at 200–01. The court sentenced Osuba




                                   8
to 360 months on Count One, 240 months on Count Two, and 240

months on Count Three, to run consecutively for a total of 840 months

of imprisonment. Osuba now appeals.

II.   Discussion

      Osuba challenges the sufficiency of the evidence for his

conviction on Count One, arguing that only he (and not the minor)

engaged in sexually explicit conduct on the video, and that he

therefore did not violate the statute. He also argues that the district

court erred in finding that he abused his daughter, and thus in

applying the five-level sentencing enhancement.        Finally, Osuba

contends that his lengthy sentence was substantively unreasonable.

We disagree with Osuba on each point.

      A.    Sufficiency of the Evidence

      We review a challenge to the sufficiency of the evidence

supporting a conviction de novo. United States v. Gershman, 

, 95 (2d Cir. 2022). A defendant who brings such a challenge “bears

a heavy burden.” United States v. Jackson, 

 (2d Cir.



                                  9
2003) (citation and internal quotation marks omitted). Because of the

strong deference to which jury verdicts are entitled in our justice

system, we must “draw all permissible inferences in favor of the

government and resolve all issues of credibility in favor of the jury’s

verdict.” United States v. Willis, 

 (2d Cir. 2021). A

conviction will stand so long as “any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.”

Jackson v. Virginia, 

 (1979).

       Osuba was convicted under 

(a), which

mandates a minimum 15-year prison term for:

       Any person who employs, uses, persuades, induces,
       entices, or coerces any minor to engage in . . . any
       sexually explicit conduct for the purpose of producing
       any visual depiction of such conduct . . . . 4




       4  The statute’s jurisdictional element further requires that the offender
must know or have reason to know that the visual depiction will be transmitted in
interstate commerce, be produced using materials that have traveled in interstate
commerce, or actually be transmitted using a means or facility of, or a means or
facility affecting, interstate commerce. 

(a). That element is not
disputed here.




                                       10
“[S]exually explicit conduct” includes “actual or simulated”

“masturbation” and actual or simulated “lascivious exhibition of the

anus, genitals, or pubic area of any person.”                         

(2)(A)(iii), (v).

       The question before us is whether Osuba used the minor to

engage in sexually explicit conduct when he filmed himself

masturbating toward her. 5           Osuba argues, and the government

agrees, that the word “uses” requires the minor, not merely the

defendant, to “engage” in sexually explicit activity. Where the parties

disagree is whether, here, the minor was so “engaged.”

       To begin with, we agree with the parties that § 2251(a) requires

the minor to engage in the specified conduct. The phrase “[a]ny

person who . . . uses . . . any minor to engage in . . . any sexually

explicit conduct” might seem, if read in isolation, to require

engagement only by “any person,” so long as the perpetrator “uses”


       5 Osuba raises no challenge to the jury instructions, and our review is thus
limited to the sufficiency of the evidence.




                                        11
the minor to have that person engage in the conduct. But the rest of

the provision makes clear that, as the Seventh Circuit has held, the

minor must also engage in the sexually explicit activity. See 

(a); United States v. Howard, 

, 721–22 (7th Cir. 2020).

      In a statutory list, surrounding words may cabin a particular

word’s meaning. McDonnell v. United States, 

, 568–69

(2016) (noscitur a sociis). The other verbs in § 2251(a)’s list (“employs,”

“persuades,” “induces,” “entices,” and “coerces”) all require the

minor to engage in sexually explicit conduct. If a friend tells you she

respects “any person who persuades a child to eat vegetables,” it is

the child, not the persuader, who must have polished off the broccoli.

Substitute “employs,” “induces,” “entices,” or “coerces” for

“persuades” and the result is the same. Reading “uses” in § 2251(a)

to allow the explicit conduct to be only that of the defendant or some

third party, but not the minor, would give the provision “a jarringly

different meaning.” Howard, 

.




                                    12
          What the text of the provision suggests, the rest of the statute

confirms. Section 2251(a) was enacted as part of the Protection of

Children Against Sexual Exploitation Act of 1977, Pub. L. No. 95–225,

§ 2(a),     

,   7   (1978).     That   act   targeted   the

“production[,] . . . receipt, transmission, and possession of child

pornography.” United States v. Holston, 

 (2d Cir. 2003).

Its provisions penalize advertising, § 2251(d)(1); transporting,

§ 2252(a)(1)(A); receiving or distributing, § 2252(a)(2)(A); selling,

§ 2252(a)(3)(B); and possessing or accessing, § 2252(a)(4)(B), material

involving, in each instance, “the use of a minor engaging in sexually

explicit conduct.” Statutory interpretation is a “holistic endeavor,”

and the consistent need for the minor to engage in sexually explicit

conduct suggests that § 2251(a) should be read to match its siblings.

United Sav. Ass’n of Tex. v. Timbers of Inwood Forest Assocs., Ltd., 

 (1988); see also United States v. Kozeny, 

(2d Cir. 2008) (words should be read in light of “the provisions of the




                                      13
whole law,” its “object,” and its “policy” (citation and internal

quotation marks omitted)); ANTONIN SCALIA & BRYAN A. GARNER,

READING LAW: THE INTERPRETATION OF LEGAL TEXTS 167–69 (2012)

(whole-text canon).

      This textual question does not, however, end the case. We must

also determine whether the minor here did, in fact, “engage in”

sexually explicit conduct. 

(a). Engagement, of course,

can be active or passive. To take an extreme example of the latter, if

a defendant raped a drugged, unconscious child, the child would

undoubtedly have been engaged in sexual activity, even though only

as a “passive participant.” See United States v. Heinrich, 

 (3d Cir. 2023). Similarly, because § 2256 defines sexually explicit

conduct to include “actual or simulated” activity, if a sleeping child is

“used or manipulated in such a manner as to make it appear that she

is engaging in sexually explicit conduct, then the statute is violated.”

United States v. Levy, 

 (S.D.N.Y. 2009). As the




                                   14
Third Circuit has noted, it would be “absurd” to read the statute “to

protect children actively involved in sexually explicit conduct, but not

protect children who are passively involved in sexually explicit

conduct while sleeping, when they are considerably more

vulnerable.” United States v. Finley, 

 (3d Cir. 2013);

see also United States v. Lohse, 

, 520–21 (8th Cir. 2015) (jury

could find that the defendant “quite literally used [a sleeping child]

as a sexual object”).

      Given the facts of this case, we hold that a rational jury could

have concluded, beyond a reasonable doubt, that Osuba used the

minor to engage in sexually explicit conduct. Osuba’s sexual activity

was wholly directed toward her, in a way that rendered her a

participant (albeit a passive one) in that activity. He set up the camera

to show her right next to him. He ejaculated toward her, missing her

arm only narrowly. He told the Kik user to whom he sent the videos,

“I came on her.” Gov’t. Ex. 18-J at 0:12. He said that he was “getting




                                    15
off” to her presence. Gov’t. Ex. 18-C at 2:03. By creating a video

depicting a form of “sexually explicit conduct” enumerated in

§ 2256(2)(A) (here, masturbation), the intended consummation of

which was visibly directed toward a minor who was physically

present, Osuba crossed the line from “a simple display of adult

genitals around a sleeping minor” to showing his victim as “an

inanimate body” upon which he was acting sexually. Lohse, 

.

      A recent decision of the Eleventh Circuit supports our holding.

In United States v. Dawson, the court held that a defendant had used a

minor to engage in sexually explicit conduct under § 2251(a) when he

filmed himself covertly masturbating next to a clothed and conscious,

but apparently oblivious, child. See United States v. Dawson, No. 21-

11425, 

 (11th Cir. Apr. 5, 2023). The child, the court

reasoned, “was passively involved in [the defendant’s] sexually

explicit conduct by serving as the object of [his] sexual desire.” 

 at




                                   16
*8. Dawson construed the text of § 2251(a) differently than we do,

concluding that “the minor need not be the one engaging in sexually

explicit conduct,” and that “the minor’s passive involvement . . . is

sufficient.” Id. at *7. The court read the provision’s six verbs as lying

on a “spectrum” from those, such as “coerces,” that suggest “active

engagement” to those, such as “employs” and “uses,” that suggest

“passive involvement.” Id. at 8. We are not convinced that this is the

best reading of the statute, because a person might “coerce” a child’s

passive engagement, perhaps by drugging her and engaging her in

sexually explicit conduct, or “employ” a child’s active engagement,

perhaps by paying her to participate.        But the Eleventh Circuit

recognized that, even assuming § 2251(a) “requires the minor to

engage in sexually explicit conduct,” it was enough that the defendant

made the minor “passively engage.” Id. at *8 n.7.

      Decisions of the Third and Eighth Circuits point in the same

direction. See Finley, 

 (jury could find a defendant




                                   17
“‘use[d]’ a minor to engage in sexually explicit conduct without the

minor’s conscious or active participation”); Lohse, 797 F.3d at 520–21

(sleeping child used “as a sexual object”).      Although both cases

involved physical contact between the defendant and a sleeping

minor, our sister circuits recognized that a minor may be used to

engage in sexually explicit conduct passively.

      Osuba emphasizes that his conduct did not involve physical

contact. But physical contact is not a necessary component of passive

engagement.     A nude, sleeping child has passively engaged in

“lascivious exhibition,” for example, when someone photographs her

genitals without touching her. See United States v. Wolf, 

 (10th Cir. 1989). Even without physical contact, Osuba’s conduct

was so directed toward the minor that it engaged her, albeit passively,

in sexually explicit conduct.

      Osuba also argues that we are breaking with the Seventh

Circuit, which in Howard vacated a conviction under § 2251(a) for




                                  18
masturbating over a sleeping child. See Howard, 

. We

agree with Howard that the minor must engage in the sexually explicit

conduct. We part ways on the bottom line because we address a

question Howard did not reach, explaining not only that the minor

must engage in sexually explicit conduct, but also how the minor may

do so. In Howard, the government’s sole argument was that the

statute required only the defendant, not the minor, to engage in the

proscribed conduct. See Appellant’s Br. at 16–28, United States v.

Howard, 

 (2020) (No. 19-1005).     Having rejected this

“sexual object” theory, the Seventh Circuit declined to consider

alternatives. See Howard, 

 (“The government staked its

entire case for conviction on a mistaken interpretation of the

statute.”). But the court acknowledged that different legal arguments

might have saved the government. See 

 at 723 n.3 (noting that the

defendant appeared to touch his penis to the minor’s lips, which

might have constituted engaging the minor in oral sex, had the




                                 19
government presented such a theory). Whether the Seventh Circuit

would have agreed with the argument presented by the government

in our case, and upon which we now rely, we do not know. But we

take a step Howard did not, holding that on the facts of this case, the

minor’s passive involvement as the intended recipient of Osuba’s

actions suffices to constitute her “engage[ment]” under § 2251(a). Cf.

Howard, 

 (requiring “some action by the offender to

cause the minor’s direct engagement in sexually explicit conduct”).

      Like the Howard court, Osuba worries that the government’s

reading would make a criminal out of someone who filmed himself

engaged in sexual activity while children can be heard playing

outside, or even while merely thinking about children, were he to

later confess that the children played a central role in his sexual

experience. See 

 (positing similar hypotheticals). But the text

of the statute forecloses such interpretations. The “visual depiction”

must be “of” the sexually explicit conduct in which the minor engages




                                   20
(regardless of whether that engagement is active or passive on the

part of the minor). 

(a). That element was satisfied

here.

        Osuba also argues that his conduct cannot have fallen within

§ 2251(a) because the child was clothed. But that argument proves

too much. On Osuba’s theory, someone who filmed himself engaging

in oral sex with a clothed and sleeping child would not have used the

child to engage in sexual activity—a result that defies the plain text of

the statute. See Howard, 

 n.3.

        We note, moreover, that our holding is a narrow one. Although

we conclude that Osuba’s conduct sufficed under § 2251(a),

sufficiency of the evidence determinations necessarily turn on the

specific facts of each case. We do not purport to delineate every set

of acts that will satisfy the statute.

        B.    The Sentencing Enhancement

        “We review the reasonableness of a district court’s sentence

under a deferential abuse of discretion standard.” United States v.



                                     21
Hernandez, 

 (2d Cir. 2010). This review “encompasses

two components: procedural review and substantive review.” United

States v. Cavera, 

 (2d Cir. 2008) (en banc). A district

court commits procedural error when it fails to properly calculate the

Guidelines range or rests its sentence on a clearly erroneous finding

of fact. 

. The district court must find facts relevant to a

sentencing enhancement by a preponderance of the evidence. United

States v. Mi Sun Cho, 

 (2d Cir. 2013).

      We review unpreserved objections for plain error. Fed. R.

Crim. P. 52(b) (“A plain error that affects substantial rights may be

considered even though it was not brought to the court’s attention.”);

see Davis v. United States, 

 (2020). Osuba therefore

must establish that “(1) there is an error; (2) the error is clear or

obvious, rather than subject to reasonable dispute; (3) the error

affected [his] substantial rights, which in the ordinary case means it

affected the outcome of the district court proceedings; and (4) the




                                   22
error seriously affect[s] the fairness, integrity or public reputation of

judicial proceedings.” United States v. Marcus, 

, 262 (2010)

(cleaned up). 6 When considering the first and second prongs—

whether there has been error at all, and whether that error was

obvious—with respect to factual findings, we ask whether the district

court “clearly erred.” United States v. Tulsiram, 

 (2d

Cir. 2016). Under this deferential standard, “[i]f the district court’s

account of the evidence is plausible in light of the record viewed in its

entirety,” we “may not reverse” even if we are “convinced that had




       6  Some of our cases have suggested that a “relaxed” plain error standard is
appropriate in sentencing appeals, in certain circumstances, such as where the
defendant lacked prior notice that the district court would impose a certain
condition of supervised release. See United States v. Sofsky, 

, 125–26
(2d Cir. 2002). We have applied the relaxed standard in some cases, see, e.g., United
States v. Haverkamp, 

 (2d Cir. 2020), but not others, see, e.g.,
Broxmeyer, 699 F.3d at 279, and have “questioned” whether it is appropriate in
every appeal involving an unpreserved sentencing objection, United States v.
Ramos, 

, 998 n.2 (2d Cir. 2020). We have noted (albeit in a summary
order) that it is not clear whether our relaxed practice survived the Supreme
Court’s decision in Davis, 140 S. Ct. at 1061–62, which relied on the language of
Fed. R. Crim. P. 52(b). United States v. Belfon, No. 21-1444, 

, at *2
n.4 (2d Cir. Mar. 3, 2023) (summary order). We need not explore the issue further
because no matter what flavor of plain error review might apply, Osuba’s claims
fail.




                                         23
[we] been sitting as the trier of fact, [we] would have weighed the

evidence differently.” Anderson v. City of Bessemer City, 

,

573–74 (1985). A finding of clear error is warranted only when “we

are left with the definite and firm conviction that a mistake has been

committed.” United States v. Mattis, 

 (2d Cir. 2020).

       Section 4B1.5(b)(1) of the U.S. Sentencing Guidelines provides

that when “the defendant’s instant offense of conviction is a covered

sex crime . . . and the defendant engaged in a pattern of activity

involving prohibited sexual conduct,” the court should add five levels

to the previously calculated offense level. 7 A defendant has engaged

in the necessary pattern of activity if “on at least two separate

occasions, [he] engaged in prohibited sexual conduct with a minor.”

U.S.S.G. § 4B1.5 application n.4(B)(i). 8 At least one of those acts “can


       7  A “covered sex crime” includes a violation of 

(a). U.S.S.G.
§ 4B1.5 application n.2.
        8 “[P]rohibited sexual conduct” includes offenses under chapters 117,

109A, and 110 of Title 18; it also includes state offenses and other conduct that
would have fallen under those chapters had it taken place in an area under federal
jurisdiction. U.S.S.G. § 4B1.5 application n.4(A); 

(b)(1). Osuba does




                                         24
be the crime of conviction.” United States v. Broxmeyer, 

 (2d Cir. 2012). The district court found that Osuba had engaged

in prohibited sexual conduct with a minor on at least two occasions:

the conduct underlying Count One and the abuse of Osuba’s

daughter, E.

       The district court did not clearly err in finding that Osuba

sexually abused his daughter. Several pieces of evidence supported

that finding. Osuba admitted to investigators that he fantasized about

having sex with E. Over Kik, he gave Lisbet Fjostad graphic details

of his abuse (which she passed on to investigators). E confirmed

Osuba’s claims when she told investigators about episodes of sexual

contact with Osuba, the details of which tracked Osuba’s messages to

Fjostad. And E’s brother partially corroborated E’s statements when

he described Osuba’s use of a device that matched the description

given by E.



not dispute that had he abused E as the district court found, that abuse would have
constituted prohibited sexual conduct.




                                        25
      The countervailing evidence to which Osuba points is

insufficient to demonstrate clear error. It is true that E initially told

interviewers that no one had ever touched her inappropriately, and

that B initially described the story of the device as “a lie.” But it is

hardly surprising that young children would be reluctant to describe

sexual abuse when first asked about it. And in any event, the mere

presence of evidence pointing in both directions does not establish

clear error, because when “there are two permissible views of the

evidence, the district court’s choice between them cannot be deemed

clearly erroneous.” United States v. Ruggiero, 

 (2d Cir.

1996) (citation and internal quotation marks omitted).

      Osuba also argues that when a child sexual abuse case turns on

the relative credibility of the accuser and the accused, the factfinder is

required to vigorously examine the testimony and other evidence—

scrutiny he claims was lacking here. But the cases on which Osuba

relies largely involve claims that a defense lawyer was ineffective in




                                   26
failing to vigorously challenge inculpatory evidence at trial. See, e.g.,

Gersten v. Senkowski, 

 (2d Cir. 2005). The standards

they set out do not apply to the district court’s evaluation of the facts

at sentencing. 9      There is a single standard of review for such

factfinding: clear error. Because sufficient evidence supported the

district court’s finding that Osuba abused his minor daughter, we

cannot form a “definite and firm conviction” that the district court

erred. 10 Mattis, 

.


       9   Osuba also points to Pavel v. Hollins, in which we noted certain “indicia
of false allegations” in child abuse cases described in publicly available guidelines
of the American Academy of Child and Adolescent Psychiatry, including (1) that
a parent first suggested to a third party that her children were being abused, (2)
that the allegedly abused child was a pre-schooler, and (3) that there was an
ongoing custody battle between the parent who raised the suggestion of abuse and
the parent accused of abusing the child. 

, 226 & n.19 (2d Cir. 2001).
Those are, of course, factors that a party might raise to the factfinder, but we have
never required district courts to recite every potentially relevant factor when
making factual findings, especially when those findings are adopted from a PSR.
See United States v. Watkins, 

 (2d Cir. 2012) (when a district court
adopts the factual findings of a defendant’s PSR it “is not required explicitly to
provide any further analysis”).
         10 Osuba also argues that the PSR included an erroneous finding that

because he created two videos of himself masturbating while his minor victim
slept, those two videos could count as separate occasions to satisfy § 4B1.5(b).
Because we hold that the district court did not err in finding that Osuba abused E,
we need not reach this argument.




                                         27
       As a fallback, Osuba argues that the district court abused its

discretion by failing to hold an evidentiary hearing on the factual

findings in the PSR. But a full-blown evidentiary hearing is not

always required to resolve factual disputes at sentencing; the district

court has discretion to determine the form and extent of any contested

factfinding procedure. See United States v. Fatico, 

, 1057

n.9 (2d Cir. 1979). It is enough if the defendant has “some opportunity

to rebut the Government’s allegations,” and Osuba availed himself of

just such an opportunity when he vigorously disputed the PSR’s

findings in his sentencing memorandum. United States v. Phillips, 

 (2d Cir. 2005) (internal quotation marks omitted).




        The sufficiency of that finding also means we need not reach Osuba’s
arguments concerning his alleged abuse of two other children. Although the PSR
included evidence that Osuba had sexually abused two minors in addition to E, its
application of § 4B1.5(b)(1) was predicated solely on the conduct covered by Count
One and the abuse of E. The district court referenced evidence concerning the two
other children when discussing the enhancement, but its express adoption of the
Guidelines calculation in the PSR leaves some ambiguity about the extent of the
court’s findings. Because we affirm on the basis of Osuba’s offense conduct plus
his abuse of E, we need not consider the evidence concerning other children.




                                       28
      Osuba’s final argument is that the district court erred by not

specifying the state or federal statutes that criminalized his alleged

abuse of E. We are not persuaded. In Phillips, we held that to “justify

the application of § 4B1.5(b), the district court must explicitly state

which statutory offenses constitute the ‘prohibited sexual conduct.’”

. Without specificity, we explained, the Court might be

unable to determine “whether the conduct was prohibited by law and

covered by § 4B1.5(b).”        Id.   The Phillips Court was especially

concerned because the case involved juvenile sex crimes, an area in

which the category of covered offenses is “nuanced.” Id. Here,

neither the PSR nor the district court specified the state or federal

statutes that Osuba violated. Osuba did not object in the district

court, and our review is thus for plain error. See Broxmeyer, 

 (plain error review applies to forfeited procedural challenge to

fact-finding at sentencing).




                                     29
       Osuba cannot meet this standard. The district court’s failure to

cite specific statutory provisions did not affect the outcome of the

proceedings, and thus did not affect Osuba’s substantial rights. The

concern that motivated the Phillips Court—the complexity of statutes

governing sex crimes by juveniles—is absent here, as the uncharged

conduct was plainly prohibited by New York law, which defines first-

degree sexual abuse to include “sexual contact” with someone “less

than eleven years old.” 

(3). 11

       C.      Substantive Reasonableness

       Having determined that there was no procedural error, we

must “consider the substantive reasonableness of the sentence

imposed under an abuse-of-discretion standard.”                   Gall v. United

States, 

 (2007). A sentence is substantively unreasonable

when it “cannot be located within the range of permissible decisions,”




       11 “Sexual contact” includes “any touching of the sexual or other intimate
parts of a person for the purpose of gratifying sexual desire of either party.” 

(3).




                                        30
because it is “shockingly high, shockingly low, or otherwise

unsupportable as a matter of law.” Cavera, 

 (first

quote); Martinez, 

 (2d Cir. 2021) (second quote).

Substantive challenges are assessed based on “the totality of the

circumstances, giving due deference to the sentencing judge’s

exercise of discretion, and bearing in mind the institutional

advantages of district courts.” Cavera, 

.

      Osuba received a within-Guidelines, statutory-maximum

sentence of 70 years of imprisonment.         That sentence, though

undoubtedly severe, falls within the range of sentences we have

upheld in child pornography cases—particularly those involving

defendants who sexually molest children. In United States v. Brown,

 (2d Cir. 2016), for example, we upheld a 60-year sentence

for three counts of production and two counts of possession of child

pornography. As in Brown, Osuba had repeated sexual contact with

at least one minor victim, and the fact that a victim was “asleep when




                                  31
some of the . . . videos were taken of [her] does not . . . make [the

defendant’s] conduct any less serious.” 

.

      Osuba points to a case in which an offender received a shorter

sentence for sex crimes that were, in Osuba’s view, graver than those

at issue here. See United States v. Muzio, 

 (2d Cir. 2020)

(thirty-five-year sentence where defendant manipulated at least

fourteen minor girls into producing child pornography). But even

setting aside the inherent difficulty of comparing such divergent

criminal conduct, these judgments are chiefly committed to the

district court’s considerable discretion. See United States v. Jones, 

 (2d Cir. 2008) (noting that “even experienced district

judges may reasonably differ” over sentencing, and “[r]arely, if ever,

do the pertinent facts dictate one and only one appropriate

sentence”). We see no indication that the district court overstepped

the mark here.




                                   32
      Osuba also challenges the district court’s balancing of the

sentencing factors set out in 

(a). But on this point he

simply repeats an argument we have already rejected: that the district

court erred in finding that he had abused E. And in any event, the

district court explained that a 70-year sentence was necessary because

Osuba was a “danger to minors and the public in general both for

hands-on offenses and possession and distribution of child

pornography.” App’x 209. The court acknowledged that Osuba had

apologized—“You say you’re sorry . . . . I believe that you believe

that”—but made a factual finding that Osuba had not recognized the

wrongfulness of his conduct or expressed remorse before his

statement at sentencing. 

. More important, the court

concluded that above all else, its sentence needed to protect the

public, deter Osuba, and deter others. See Cavera, 

(“[W]e will not substitute our own judgment for the district court’s on




                                  33
the question of what is sufficient to meet the § 3553(a) considerations

in any particular case.”).

III.   Conclusion

       In sum, we hold as follows:

       1. There was sufficient evidence for a rational jury to conclude,

          beyond a reasonable doubt, that Osuba “use[d]” a minor “to

          engage in . . . sexually explicit conduct” under 

(a) when he filmed himself masturbating near the

          victim, directed his conduct toward her, and framed the

          visual depiction to show that she was a passive participant

          in his sexual activity.

       2. The district court did not clearly err in applying the five-

          level repeat-and-dangerous-offender enhancement because

          sufficient evidence supported the finding that Osuba

          abused his minor daughter.

       3. Osuba’s sentence was substantively reasonable.

       We therefore AFFIRM the judgment of the district court.



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