Submitted: September 18, 2017
from United States District Court for the Southern District
of Iowa - Des Moines
SMITH, Chief Judge, MELLOY and GRUENDER, Circuit Judges.
Chambers pleaded guilty to possession of child pornography,
in violation of 18 U.S.C. § 2252(a)(4)(B). The district
court 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.
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,  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.
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.
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 assigned to Chambers.
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.
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),
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.