Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit

1-14-2009

USA v. Dane Kistner Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1563

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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 08-1563

UNITED STATES OF AMERICA

v.

DANE E. KISTNER, Appellant

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 1-07-cr-00163-001) District Judge: Honorable Christopher C. Conner

Submitted Under Third Circuit LAR 34.1(a) January 12, 2009

Before: SLOVITER and BARRY, Circuit Judges, and POLLAK,* District Judge

(Filed January 14, 2009 ) _____

OPINION ______

* Hon. Louis H. Pollak, Senior Judge, United States District Court for the Eastern District of Pennsylvania, sitting by designation. SLOVITER, Circuit Judge.

Appellant Dane Kistner challenges the reasonableness of his sentence following

entry of a guilty plea for enticing a minor to engage in sexually explicit conduct for the

purposes of producing a visual depiction, in violation of

(a).

I.

Because we write primarily for the parties, our recitation of the facts is brief. In

February 2007, Kistner, then fifty-four years old, engaged in repeated acts of sexual

intercourse with a fifteen-year-old girl, P.A., over the course of about one week. Kistner

also took numerous digital photographs of P.A., including twelve that met the definition

of child pornography, and he attempted to delete or conceal these photographs on his

computer once he became aware of the investigation into his relationship with P.A. The

District Court found that “it is clear that [Kistner] knew the victim suffers from a mental

health disorder,” App. at 34, and, of course, he was aware of P.A.’s age as well.

As noted above, Kistner pleaded guilty to a violation of

(a). The

District Court calculated Kistner’s sentencing range under the Sentencing Guidelines to

be 180-210 months imprisonment, after adjusting the range for a statutory minimum

sentence of 180 months imprisonment. Although, pursuant to his plea agreement, the

government recommended the statutory minimum sentence, the District Court sentenced

Kistner to 195 months imprisonment. The District Court also ordered that Kistner be

evaluated for a sex offender treatment program, ordered a below-Guidelines fine of $800,

2 restitution of about $794, and a special assessment of $100, and imposed a lifetime term

of supervised release.1

II.

We review the procedural and substantive reasonableness of a sentence under an

abuse of discretion standard of review. Gall v. United States,

(2007).

According to Kistner, his sentence was unreasonable because the District Court

failed to give adequate weight to his past age-appropriate relationships and his age at

sentencing. However, the District Court throughly reviewed Kistner’s history and

characteristics, including his family history, military service, record of employment,

psychiatric issues, and absence of a criminal record. The District Court held that these

factors were outweighed by the seriousness of the offense and the need for just

punishment as well as general and specific deterrence. In light of the nature of the

offense, including the age disparity between Kistner and his victim, his awareness of her

mental health disorder, his concealment, and the impact of his crime on the victim and her

family, we cannot conclude that District Court abused its discretion.

Kistner next argues that his sentence was unreasonable because the District Court

relied in part on his awareness of P.A.’s mental health disorder, even though the District

Court acknowledged that there was no proof that Kistner knew that P.A.’s mental

1 The District Court had jurisdiction pursuant to

. We have jurisdiction pursuant to

and

(a).

3 disorder made her more vulnerable (as it did) to his advances. However, the District

Court could reasonably consider Kistner’s awareness of P.A.’s mental health condition,

see

, as well as her youth, which was relevant to the District Court’s

consideration of the nature and seriousness of the offense.

Finally, Kistner argues that the District Court improperly inferred that he had plans

to pursue other young females from the fact that investigators found several photographs

of other, unidentified girls in his home. Again, the District Court was entitled to consider

these photographs as part of the totality of the circumstances surrounding the nature of the

offense as well as Kistner’s history and characteristics. Moreover, we note that nothing in

the record suggests that the District Court placed significant weight on these photographs

when rendering Kistner’s sentence.

In sum, the record demonstrates that the District Court appropriately calculated the

sentencing range recommended under the Sentencing Guidelines, exercised its discretion

by considering the relevant sentencing factors under

(a), and provided a

reasoned explanation for its conclusions. Moreover, considering the totality of the

circumstances, we cannot say that the District Court’s sentence was substantively

unreasonable under an abuse of discretion standard. Thus, we conclude that the Kistner’s

sentence was both procedurally and substantive reasonable.

III.

For the above-stated reasons, we will affirm the sentence.