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United States v. Chambers

United States Court of Appeals, Eighth Circuit

December 22, 2017

United States of America Plaintiff- Appellee
v.
Roger Cecil Chambers Defendant-Appellant

          Submitted: September 18, 2017

         Appeal from United States District Court for the Southern District of Iowa - Des Moines

          Before SMITH, Chief Judge, MELLOY and GRUENDER, Circuit Judges.

          PER CURIAM.

         Roger Chambers pleaded guilty to possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). The district court[1] sentenced Chambers to 135 months' imprisonment. He appeals the sentence, arguing that the district court erred by: (1) applying a five-point enhancement for engaging in a pattern of activity involving sexual abuse or exploitation of a minor under U.S.S.G. § 2G2.2(b)(5), and (2) adding two points to his criminal history score pursuant to § 4A1.1(d) for conduct substantially related to the instant offense while serving under a criminal justice sentence. We affirm.

         I. Background

         In 2006, Chambers pleaded guilty to lascivious acts with a child, in violation of Iowa law. At the time, Chambers lived with his sister's family and occasionally babysat his seven-year-old niece. As summarized by the Iowa prosecutor's minutes of testimony, [2] his niece reported separate instances of sexual abuse by Chambers. The victim described the abuse to a police officer and to the Iowa Department of Human Services. During her interview, the child told interviewers that Chambers "lets her touch his body." Revised Final Presentence Investigation Report at 39, United States v. Chambers, No. 4:16-cr-00020-JAJ-CFB-1 (S.D. Iowa Nov. 16, 2016), ECF No. 44. She referred to "[t]he last time this happened." Id. She also described in detail the day Chambers last babysat her:

She was at home with the defendant playing video games in the living room. Uncle Roger went to shave in the bathroom and she went to help him. Then they went back into the living room and played some more video games and then they went downstairs. While she was "sorting things" Uncle Roger began to film her. They went back upstairs and played more video games and watched television. During this time period, the defendant let her touch his private area several times. The first time was when they were playing video games together. The defendant asked her if he could touch her private area and she said, "no, not right now." But he did touch her with his hand in her private area . . . . She told the investigators that she took off her underwear . . . . Her Uncle Roger also touched her private area with his fingers without her underwear being on.

Id.

         When confronted by law enforcement, Chambers said that he could not remember the events of that day. He tearfully denied any memory of having touched the child's genitalia or having made the child fondle his private parts. Notably, however, Chambers told the interviewing officer that "if that's what she said, I guess I did it." Id. at 41. Following his guilty plea, Chambers was sentenced to five years in state prison, followed by a lengthy parole term.

         Chambers eventually was released on parole. While on parole in 2013, Chambers attracted law enforcement scrutiny. In April 2011, Chambers began working as a housekeeping aid at the United States Department of Veteran Affairs (VA) Medical Center (VAMC) in Des Moines. In January 2013, after internet activity logs revealed search terms consistent with inquiries for child pornography on one of its computers, the VA initiated an inspection of the Des Moines VAMC. The investigation led to a computer in the center's Environmental Management Services Department break room. Investigators replaced the computer's hard drive and searched the removed drive. The search discovered files containing child pornography in the internet cache folders[3] assigned to Chambers.

         In April 2013, the VA investigators removed the newly installed hard drive from the breakroom computer and again found files containing child pornography in Chambers's assigned internet cache folders. The investigation also revealed that at the time of his 2006 arrest, Iowa law enforcement had seized Chambers's laptop computer but proceeded no further at the time. Investigators went back and examined the machine. They found 86 images and one video of child pornography on Chambers's seized laptop.

         When confronted, Chambers ultimately admitted to his parole officer that he accessed and viewed child pornography on the VA computer. Subsequently, the court revoked his parole. A federal grand jury then indicted Chambers on two criminal counts: (1) access with intent to view child pornography in 2013, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2); and (2) possession of child pornography in 2006, in violation of 18 U.S.C. §§ 2252(a)(4)(B), (b)(2), and 2256.

         Chambers pleaded guilty to the child pornography possession charge. At sentencing on that charge, the government dismissed the remaining charge for access with intent to view. The presentence investigation report (PSR) recommended several enhancements to Chambers's base offense level, including a five-level enhancement under U.S.S.G. § 2G2.2(b)(5) for engaging in a pattern of activity involving sexual abuse or exploitation of a minor stemming from the 2006 state conviction. Chambers objected, arguing lack of a pattern of activity. The district court disagreed, finding by a preponderance of the evidence that the government reliably proved "that the abuse happened on multiple occasions." Sentencing Transcript at 7, United States v. Chambers, No. 4:16-cr-00020-JAJ-CFB-1 (S.D. ...


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