United States of America v. Dane E. Kistner

Hon. Louis H. Pollak, Senior Judge, United States District*
Court for the Eastern District of Pennsylvania, sitting by
designation.
NOT PRECEDENTIAL
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 )
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OPINION
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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 18 U.S.C. § 2251(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 18 U.S.C. § 2251(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,

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The District Court had jurisdiction pursuant to 18 U.S.C.1
§ 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a).
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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, 128 S. Ct. 586, 597 (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

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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 18 U.S.C. § 3661, 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 18 U.S.C. § 3553(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.

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