Marc Moore v. City of Sedalia etc.

1 The Honorable Andrew W. Bogue, United States District Judge for the District
of South Dakota, sitting by designation.
2 The Honorable Robert W. Pratt, United States District Judge for the Southern
District of Iowa.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 01-1387
___________
United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the Southern
Jody Lee Johnson, * District of Iowa.
*
Appellant. * [UNPUBLISHED]
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Submitted: September 12, 2001
Filed: October 12, 2001
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Before MORRIS SHEPPARD ARNOLD and BRIGHT, Circuit Judges, and
BOGUE,1 District Judge.
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PER CURIAM.
This appeal presents a single issue, namely, whether the district court 2 erred in
denying Jody Lee Johnson a reduction in his sentence for acceptance of
responsibility. We conclude that it did not and therefore affirm the judgment.

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-2-
Mr. Johnson pleaded guilty to the sexual exploitation of a minor in violation
of 18 U.S.C. § 2251(a). His presentence report recommended that he not be given a
downward adjustment for acceptance of responsibility because he continued to
minimize his acts and describe them in a way that was both unbelievable and very
self-serving. The district court denied the reduction based on the facts contained in
the presentence report and also because it was not convinced of the sincerity of
Mr. Johnson's apology for his acts. We review a decision not to make a downward
adjustment for clear error, see United States v. Goings, 200 F.3d 539, 544 (8th Cir.
2000), and are mindful that the United States Sentencing Guidelines provide that in
cases such as this "the determination of the sentencing judge is entitled to great
deference on review," U.S.S.G. § 3E1.1, comment. (n.5).
Mr. Johnson does not deny any of the facts that furnished the basis for the
recommendation against a downward adjustment contained in his presentence report.
Rather, he maintains that he is entitled to such an adjustment because his denials and
excuses were symptomatic of his illness (paraphilia) and thus it was error to equate
them with a refusal on his part to accept responsibility. In the first place, Mr. Johnson
did not make this argument in the district court, so he has forfeited it. See United
States v. Elliott, 89 F.3d 1360, 1367 (8th Cir. 1996), cert. denied, 519 U.S. 1118
(1997). In the second place, there is nothing in the record from which the district
court could have concluded that Mr. Johnson's denials were symptomatic of an
illness; there is only evidence that people with Mr. Johnson's sexual tendencies
typically minimize their behavior.
The judgment is therefore affirmed.

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-3-
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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