author: ERICKSON, Chief District Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Thomas ZAVESKY, Defendant-Appellant.
    No. 15-3039
    United States Court of Appeals, Eighth Circuit.
    Submitted: February 9, 2016
    Filed: October 5, 2016

      Counsel who presented argument on behalf of the appellant was Alfredo G. Parrish, of Des Moines, IA.
    Counsel who presented argument on behalf of the appellee was Craig Peyton Gau-mer, AUSA, of Des Moines, IA.
    Before SMITH and COLLOTON, Circuit Judges, and ERICKSON, District Judge.

      . The Honorable Ralph R. Erickson, Chief Judge, United States District Court for the District of North Dakota, sitting by designation.

   ERICKSON, Chief District Judge.

A jury convicted Thomas Zavesky on one count of receipt of child pornography in violation of 18 U.S.C. §§ 2252(a)(2), 2252(b)(1), and 2256 and one count of possession of child pornography in violation of 18 U.S.C. §§ 2252(a)(4)(B), 2252(b)(2), and 2256. He appeals, claiming his due process rights were violated because he was not present or given notice when the district court ordered him to undergo a competency examination, his right to a speedy trial was violated, his convictions for receipt and possession of child pornography violate double jeopardy, and the district court erred in denying his motion to suppress. We affirm.

I. Background

Zavesky came to the attention of law enforcement officers when they noticed, as part of their investigations on Internet child pornography, what appeared to be a single computer sharing child pornography at different IP addresses. Through the use of subpoenas, the investigating officers learned that Zavesky was employed as a truck driver, that Zavesky’s employer was a business using one of the IP addresses, and that Zavesky had been near the various IP locations that caught the officers’ attention.

Upon learning from Zavesky’s employer when and where Zavesky was scheduled to be in Iowa, two special agents with the Iowa Division of Criminal Investigations located Zavesky sitting in his parked semi-truck. When approached, the agents noticed the smell of marijuana emanating from the truck and observed part of a marijuana pipe in the truck and a laptop computer that was open and appeared to be turned on sitting on the passenger’s seat. One of the agents advised Zavesky that they were conducting an investigation, asked whether he would be willing to talk to them, and informed Zavesky that he was not under arrest. Zavesky exited his semi-truck and agreed to sit in the front passenger’s seat of that agent’s vehicle.

Once inside the agents’ vehicle, Zavesky was again advised that he was not under arrest and he did not have to talk to the agents. The agent made sure the door was unlocked so Zavesky could leave if he wanted. Zavesky began answering questions, cut off the interview after a short time, left the agents’ vehicle, walked toward the semi-truck, returned a short time later, and reinitiated conversation with an agent who was now standing by the trunk of his vehicle. When Zavesky left the agents’ vehicle, he was told he could not go back inside his semi-truck out of concern about the contents on the computer and whether Zavesky was under the influence given the strong odor of marijuana observed by the agents.

After observing Zavesky, the agent determined that he did not appear to be under the influence. When Zavesky resumed talking to the agents by the trunk of their car, Zavesky learned that they wanted to talk about the files on his computer. Zavesky was willing to talk about that topic, and admitted to his knowledge about file-sharing programs and estimated he had 2,800 images of child pornography. Zavesky refused to talk about a motel theft that he thought they could be investigating or the marijuana that was found underneath his semi-truck, and declined to give the password for his computer.

One of the agents then left the scene to get a search warrant for the laptop computer. A search warrant was obtained. A forensic examination uncovered child pornography, which lead to the charges in this case. Zavesky appeared on the charges on December 30, 2013! Between February 2014 and September 11, 2014, Zavesky requested the trial be continued five times, which the court granted.

On September 11, 2014, the district court held a telephonic scheduling conference. Zavesky did not participate but his lawyer appeared on his behalf and expressed concerns about Zavesky’s mental condition and competency. Zavesky’s lawyer indicated he was having difficulty communicating with Zavesky and Zavesky believed he was working for the Federal Bureau of Investigations to stop the Russian mafia from bringing child pornography into the United States. Zavesky’s lawyer also reported that a family member indicated Zavesky had a history of mental illness. The district court ordered Zavesky transferred from pretrial confinement to the custody of Bureau of Prisons for a competency evaluation.

Zavesky refused to cooperate with any mental health testing or interviews. The evaluator opined that Zavesky was competent to proceed and that Zavesky’s statements about the Russian mafia were likely an attempt to make excuses and explain his criminal conduct. After completion of the evaluation, the district court reset the case back on the trial calendar.

Zavesky then moved to suppress the statements he made to the agents on the grounds that there was a “de facto arrest” and Zavesky was illegally seized when he was told he could leave but could not get back in his semi-truck. Zavesky also argued that the evidence obtained from the semi-truck must be suppressed as it was “fruits” evidence obtained as a result of the unconstitutional seizure. The district court denied his motion to suppress, finding there was probable cause to search the semi-truck and Zavesky was not in custody when he provided the statements to the agents.

Zavesky proceeded to trial on June 8, 2015. A jury convicted him on one count of receipt of child pornography and one count of possession of child pornography. He was sentenced to. a term of 240 months’ imprisonment for receipt of child pornography and a concurrent term of 120 months’ imprisonment for possession of child pornography.

II. Discussion

On appeal, Zavesky argues there was no reasonable cause to order a mental competency evaluation, and the district court’s committal for such an evaluation without notice to him violated due process and his right to a speedy trial. He also argues his convictions for both receipt and possession of child pornography violate double jeópar-dy because the jury used the same evidence to convict him on both counts, and the district court erred in denying his motion to suppress because his statements to law enforcement officers were based on an impermissible seizure of his person and the evidence obtained from his semi-truck was “fruit of the poisonous tree.”

A. Competency Evaluation

Zavesky asserts that his statutory rights to notice and presence under 18 U.S.C. §' 4241(a) were violated when he was committed for an inpatient competency evaluation during a scheduling conference in which he was not present and without notice that his lawyer would be requesting an evaluation. Zavesky also asserts the district court’s committal process violated his Fifth Amendment due process right and the Sixth Amendment speedy trial right.

When an issue surrounding a defendant’s competency to stand trial is raised, the district court must follow the process set forth in 18 U.S.C. § 4241. A district court has a duty to order a competency hearing as follows:

At any time after the commencement of a prosecution for an offense and prior to the sentencing of the defendant, the defendant or the attorney for the Government may file a motion for a hearing to determine the mental competency of the defendant. The court shall grant the motion, or shall order such a hearing on its own .motion, if there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.

18 U.S.C. § 4241(a). The court may order a defendant to undergo a psychiatric or psychological examination and require that a report be filed with the court before the date of the hearing. 18 U.S.C. § 4241(b). Pursuant to 18 U.S.C. § 4247(b), the court may commit the defendant for an examination under § 4241 “for a reasonable period, but not to exceed thirty days.”

If the court holds a competency hearing, the hearing must be conducted pursuant to 18 U.S.C. § 4247(d). 18 U.S.C. § 4241(c). ■Under § 4247(d):

The person whose mental condition is the subject of the hearing shall be represented by counsel,... The person shall be afforded the opportunity to testify, to present evidence, to subpoena witnesses on his behalf, and to confront and cross-examine witnesses who appear at the hearing.

A district court’s decision to order a competency evaluation is reviewed for abuse of discretion. United States v. Turner, 644 F.3d 713, 723 (8th Cir. 2011). Defendant’s counsel’s opinion on competency should receive “significant weight since ‘counsel, perhaps more than any other party or the court, is in a position to evaluate a defendant’s ability to understand the proceedings.’ ” Id. (quoting United States v. Denton, 434 F.3d 1104, 1112 (8th Cir. 2006)).

Whether to order a competency evaluation prior to a hearing under § 4241(b) is discretionary. There is neither a statutory requirement of notice to a defendant, nor is the defendant’s presence required when the evaluation is ordered. A court may make a “reasonable cause” determination without a hearing. See Krupnick v. United States, 264 F.2d 213, 216 (8th Cir. 1959); United States v. Jackson, 179 Fed.Appx. 921, 932 (6th Cir. 2006); United States v. McEachern, 465 F.2d 833, 837 (5th Cir. 1972). The statutory right to notice and an opportunity to be heard arises when the district court is tasked with making a determination on whether a defendant is competent to proceed. 18 U.S.C. § 4241(c), (d), and § 4247(d).

Defense counsel expressed concern to the district court that he was having difficulty communicating with Zavesky, and that Zavesky was delusional based on his claim that he was investigating child pornography activities for the FBI. Zave-sky’s sister also reported to counsel that Zavesky suffered from some mental health issues after his child died, which was about five years before the trial. On this record, the information before the district court was sufficient to establish reasonable cause to investigate further Zavesky’s mental competency.

Turning to Zavesky’s constitutional claims, a district court’s authority to commit a person to the Bureau of Prisons for an inpatient competency evaluation is subject to due-process requirements. United States v. Neal, 679 F.3d 737, 740-41 (8th Cir. 2012). At its heart, due process requires “the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (quoting Armstrong v. Mamo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965)). Zavesky was represented by counsel at the hearing when the district court ordered Zavesky committed for a competency evaluation. While the preferred practice would include the presence of the defendant when it appears likely that the defendant and the lawyer are at odds about the necessity of a competency evaluation, under the circumstances of this case, the process and procedures undertaken by the district court were sufficient to satisfy the minimum requirements of the Due Process Clause.

Even assuming due process requires something more than what the district court did in Zavesky’s case, “[i]t has long been clear that constitutional violations can be subject to harmless error analysis.” Lufkins v. Leapley, 965 F.2d 1477, 1480 (8th Cir. 1992) (citing Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). Constitutional violations occurring during a criminal proceeding are divided into two categories: trial errors and structural defects. Arizona v. Fulminante, 499 U.S. 279, 307-10, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). A trial error is an error that can “be quantitatively assessed in the context of other evidence presented,” and is subject to harmless-error analysis. Id. at 307-08, 111 S.Ct. 1246. A structural defect “affect[s] the framework within which the trial proceeds, rather than simply an error in the trial process itself’ and thus “deifies] analysis by ‘harmless-error’ standards.” Id. at 309-10, 111 S.Ct. 1246. A structural defect is “the exception and not the rule.” Rose v. Clark, 478 U.S. 570, 578-79, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986). As recognized by the Supreme Court, “most constitutional errors can be harmless.” Fulminante, 499 U.S. at 306, 111 S.Ct. 1246.

Under these circumstances, Zave-sky’s asserted lack of notice and opportunity to be personally heard would constitute, at most, a trial error. Even assuming a constitutional violation, Zavesky has not demonstrated prejudice that resulted from the committal process. Following the evaluation, the district court found Zavesky competent to proceed. To the extent there was any information gathered during the competency evaluation, it was not used against Zavesky either at trial or at sentencing. Finally, Zavesky proceeded to trial and he has not pointed to any evidence that was unavailable because he was required to undergo a competency evaluation. Any trial error under these particular circumstances was harmless.

Zavesky contends that the committal process violated his right to a speedy trial. Assessment under the Sixth Amendment for a speedy trial violation includes consideration of the- length of the delay, the reasons for the delay, the defendant’s assertion of his right to a speedy trial, and prejudice to the defendant. United States v. Sprouts, 282 F.3d 1037, 1042 (8th Cir. 2002). In this case, there was an approximate five-month delay between the date the competency evaluation was ordered and when Zavesky was again available for trial. Before that, Zavesky requested five continuances of the trial. After the competency, evaluation, defense counsel was granted permission to withdraw and new counsel was appointed, resulting in another continuance. Trial proceeded approximately four months after the district court found Zavesky competent to proceed.

During the course of this case, Zavesky managed to work through three different lawyers, each of whom were required to become familiar with Zavesky’s ease. The motions to continue were at Zavesky’s request. Zavesky has not identified any prejudice caused by any period of delay. Under all the circumstances, the approximate 18-month delay between when Zavesky appeared on the charges and trial commenced does not rise to the level of a Sixth Amendment violation.

Finally, the Speedy Trial Act specifically excludes from consideration delay resulting from an examination to determine mental competency. 18 U.S.C. § 3161(h)(1)(A); United States v. McGhee, 532 F.3d 733, 737 (8th Cir. 2008) (proceedings to determine competency are excluded under the Speedy Trial Act, whether reasonable or unreasonable). Thus, Zave-sky has shown no statutory violation of the Speedy Trial Act.

B. Double Jeopardy •

Zavesky asserts that his convictions for receipt and possession of child pornography violate the double jeopardy clause. The Indictment alleged in count one that between September 13, 2010, and April 9, 2012, Zavesky knowingly received one or more visual depictions of a minor engaging in sexually explicit conduct. Count two alleged that on or about April 11, 2012, Zavesky knowingly possessed at least one matter containing a visual depiction of a minor engaging in sexually explicit conduct.

To prove a double jeopardy violation, a defendant must demonstrate that he was convicted of “two offenses that are in law and fact the same offense.” United States v. Muhlenbruch, 634 F.3d 987, 1002 (8th Cir. 2011). Possession of child pornography is a lesser-ineluded offense to receipt of child pornography. Id. Convictions for both possession and receipt of the same image violate the double jeopardy clause. Muhlenbruch, at 1004.

Each count in the Indictment alleges conduct occurring on a different date. At trial, the prosecutor presented evidence that child pornography was located in two main folders on the computer. Images and videos containing child pornography were downloaded between September 13, 2010, and April 10, 2012, to a folder named “Incoming”. The jury was shown several images from the “Incoming” folder. In addition, child pornography, specifically a copy of a video entitled “wowowowow”, was also located in a folder entitled “Documents” that existed on April 11, 2012. This video was played for the jury. The charging document and evidence before the jury demonstrate that different dates and different visual depictions of minors were at issue and thus there is no double jeopardy violation.

Even if there should have been more precision in distinguishing the offenses, at the jury instruction conference the prosecution had no objection to the district court’s proposed special interrogatories regarding the image or images involved in each offense. Zavesky’s counsel acknowledged that he likely had a right to the interrogatories but that he did not believe that issue to be a “determinate factor” and waived any right he might have had to present special interrogatories to the jury. T. Tr.Vol. II, pp. 185-87. Zavesky’s counsel’s statements constitute a waiver and his claim is not reviewable on appeal. See United States v. Wisecarver, 598 F.3d 982, 988 (8th Cir. 2010) (explaining that a defendant waives an argument by intentionally relinquishing or abandoning a known right and that waived claims are not reviewable on appeal).

C. Suppression Motion

Zavesky argues that the district court erred in denying his motion to suppress because he was illegally seized and subjected to a “de facto arrest” when he provided incriminating statements to law enforcement officers, and that the evidence obtained from his semi-truck was “fruit of the poisonous tree.”

A district court’s legal determination about whether a defendant was in custody is reviewed de novo and the court’s factual findings are reviewed for clear error. United States v. Vinton, 631 F.3d 476, 481 (8th Cir. 2011). Six nonexclusive factors are considered when determining whether a suspect is in custody:

(1) whether the suspect was informed at the time of questioning that the questioning was voluntary, that the suspect was free to leave or request the officers to do so, or that the suspect was not considered under arrest; (2) whether the suspect possessed unrestrained freedom of movement during questioning; (3) whether the suspect initiated contact with authorities or voluntarily acquiesced to official requests to respond to questions; (4) whether strong arm tactics or deceptive stratagems were employed during questioning; (5) whether the atmosphere of the questioning was police dominated; or, (6) whether the suspect was placed under arrest at the termination of the questioning.

United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir. 1990).

During his encounter with law enforcement officers, Zavesky was informed multiple times, at least five times according to the interviewing agent’s testimony, that he was not under arrest and that he did not have to talk to them. The vehicle’s doors were unlocked, and at one point, Zavesky left the agents’ vehicle and started walking away. When Zavesky returned, he voluntarily reinitiated the conversation with the agents. Zavesky was selective in which questions or topics he would talk about, declining to answer certain questions. Zavesky was not arrested at the scene, but left in a cab. We agree with the district court that Zavesky was not in custody and thus there was no Miranda violation.

Zavesky also argues the. district court erred in denying his motion to suppress the evidence seized from his semi-truck as “fruit of the poisonous tree.” In light of the background investigation and Zavesky’s statements, law enforcement officers had probable cause to detain Zave-sky’s semi-truck after observing the laptop in the passenger’s seat. See United States v. Goodale, 738 F.3d 917, 922 (8th Cir. 2013) (noting where officers have probable cause to believe laptop contains contraband and there is a legitimate interest in preventing destruction of the potential contraband, the Fourth Amendment permits seizure of the property, pending issuance of a warrant to examine its contents). The semi-truck was detained for approximately one hour while the officers obtained a search warrant. The warrantless seizure of the semi-truck and laptop did not violate Zavesky’s constitutional rights.. The district court did not err in denying Zavesky’s motion to suppress.

III. Conclusion

We affirm the judgment of the district court.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. John PRICKETT, Jr., Defendant-Appellant.
    No. 15-3486
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 12, 2016
    Filed: October 5, 2016

      Counsel who represented the appellant was Anna Marie Williams, AFPD, of Fay-etteville, AR.
    Counsel who represented the appellee was David R. Ferguson, AUSA, of Fort Smith, AR.
    Before LOKEN, BEAM, and SMITH, Circuit Judges.
   PER CURIAM.

John Prickett, Jr. shot his wife multiple times while camping in Buffalo River National Park. Fortunately, she survived. He conditionally pleaded guilty to assault with intent to commit murder, a violation of 18 U.S.C. § 113(a)(1) (“Count I”), and use of a firearm during a crime of violence, a violation of 18 U.S.C. § 924(c)(l)(A)(iii) (“Count II”)- Prickett moved to dismiss Count II of the indictment, but the district court denied his motion. We affirm.

The district court found that Prickett’s conviction for assault with intent to commit murder met the definition of a “crime of violence” under § 924(c)(3)(B). Prickett argues that the Supreme Court’s holding in Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), extends to invalidate § 924(c)(3)(B) as unconstitutionally vague. If § 924(c)(3)(B) is unconstitutional, Prickett seeks dismissal of Count II. We review the constitutionality of § 924(c)(3)(B) de novo. See United States v. Seay, 620 F.3d 919, 923 (8th Cir. 2010).

Section 924(c)(1)(A) provides specified mandatory minimum sentences for persons convicted of a “crime of violence” who use or carry a firearm in furtherance of that crime. Section 924(c)(3) defines “crime of violence” as

an offense that is a felony and—

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

“Section 924(c)(3)(B) defines a crime as a crime of violence if ‘by its nature it involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.’ ” United States v. Moore, 38 F.3d 977, 979 (8th Cir. 1994) (quoting 18 U.S.C. § 924(c)(3)(B)). A court’s determination of “the nature of a crime requires an examination of the elements which compose it.” Id. “This is the categorical approach.” Id.; see also Omar v. I.N.S., 298 F.3d 710, 714 (8th Cir. 2002) (recognizing that a categorical approach applies to § 924(c)(3)(B)).

Prickett does not contest that assault with intent to murder under § 113(a)(1) “by its nature” comes within the reach of § 924(c)(3)(B). See United States v. Mills, 835 F.2d 1262, 1264 (8th Cir. 1987) (“Furthermore, the legislative history is clear that the Congress amended section 924(c) with the express purpose of authorizing an additional sentence to that imposed for the underlying felony, specifically including section 113.” (citation omitted)). Instead, Prickett argues that § 924(c)(3)(B) is invalid under Johnson. “Because § 924(c)(3)(B) is considerably narrower than the statute invalidated by, the Court in Johnson, and because much of Johnson’s analysis does not apply to § 924(c)(3)(B), [Prickett’s] argument in, this regard is without merit.” United States v. Taylor, 814 F.3d 340, 375-76 (6th Cir. 2016).

In Johnson, the Supreme Court held that the “residual clause” of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B), “denie[d] fair notice to defendants and invite[d] arbitrary enforcement by judges.” 135 S.Ct. at 2557. The portion of the ACCA that the Court found unconstitutionally vague defined “violent felony”- to include an offense that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id. at 2555-56 (emphasis omitted) (quoting 18 U.S.C. § 924(e)(2)(B)(ii)).

“[Bjecause several factors distinguish the ACCA residual clause from § 924(c)(3)(B),” Taylor, 814 F.3d at 376, we join the Second and Sixth Circuits in upholding § 924(c)(3)(B) against a vagueness challenge. See id. at 375-79; United States v. Hill, No. 14-3872-CR, 832 F.3d 135, 144-150, 2016 WL 4120667, at *7-12 (2d Cir. Aug. 3, 2016). “First, the statutory language of § 924(c)(3)(B) is distinctly narrower, especially in that it deals with physical force rather than physical injury.” Taylor, 814 F.3d at 376. The “[rjisk of physical force against a victim” that § 924(c)(3)(B) requires “is much more definite than [the] risk of physical injury to a victim” that the ACCA residual clause required. Id. at 376-77. Section 924(c)(3)(B) also contains the “narrowing aspects” of “requiring that the risk of physical force arise ⅛ the course of committing the offense” and “requiring] that the felony be one which ‘by its nature’ involves the risk that the offender will use physical force.” Id. at 377 (quoting 18 U.S.C. § 924(c)(3)(B)). Unlike “the wide judicial latitude permitted by the ACCA’s coverage of crimes that ‘involve[ ] conduct’ presenting • a serious risk of injury,” § 924(c)(3)(B) does not permit “a court to consider risk-related conduct beyond that which is an element of the predicate crime since the provision covers offenses that ‘by [their] nature’ involve a substantial risk that force may be used.” Id. (alterations in original). Nor does § “924(c)(3)(B)’s requirement that physical force ‘be used in the cernirse of committing the offense’ per-mití ] • • • inquiry ■ into conduct following the completion of the offense.” Id. Instead, “the force must be used and the risk must arise in order to effectuate the crime. Thus, unlike "the ACCA residual clause, § 924(c)(3)(B) does not allow courts to consider ‘physical injury [that] is remote from the criminal act,’ a consideration that supported the Court’s vagueness analysis in Johnson.” Id. (alteration in original) (quoting Johnson, 135 S.Ct. at 2559).

“Second, the ACCA residual clause is linked to a confusing set of examples that plagued the Supreme Court in coming up with a coherent way to apply the clause, whereas there is no such weakness in § 924(c)(3)(B).” Id. at 376. The ACCA residual clause contains a “textual link ..'. by the word ‘otherwise’ to four enumerated but diverse crimes.” Id. at 377 (citing Johnson, 135 S.Ct. at 2558). The ACCA residual clause’s use of the word “otherwise” “force[d] courts to interpret ‘serious potential risk’ in light of the four enumerated crimes—burglary, arson, extortion, and crimes involving the use of explosives.’ ” Id. (quoting Johnson, 135 S.Ct. at 2558). But § 924(c)(3)(B) does not “link[ ] the ‘substantial risk’ standard, through the word otherwise, ‘to a confusing list of ex-ampies.’” Id. (quoting Johnson, 135 S.Ct. at 2561). Therefore, courts need not “anal-ogiz[e] the level of risk involved in a defendant’s conduct to burglary, arson, extortion, or the use of explosives.” Id,

“Third, the Supreme Court reached its void-for-vagueness conclusion only after struggling mightily for nine years to come up with-a coherent interpretation of the clause, whereas no such history has occurred with respect to § 924(c)(3)(B).” Id. at 376. Section 924(c)(3)(B) does not have a similar history, as “the Supreme Court has not unsuccessfully attempted on multiple occasions to articulate the standard applicable to the § 924(c)(3)(B) analysis.” Id. at 378. Nor can we transfer “the confusion about the ACCA in pre-Johnson Supreme Court decisions ... to § 924(c)(3)(B), because much of the confusion in the ACCA cases concerned the four enumerated crimes that were linked to the residual clause.” Id. (citing Johnson, 135 S.Ct. at 2558-59).

“Finally, the Supreme Court was clear in limiting its holding to the particular set of circumstances applying to’ the ACCA residual clause, and only some of those circumstances apply to § 924(c)(3)(B).” Id. at 376. The Court dismissed the concern that its holding “would place in doubt ‘dozens of federal and state criminal laws[, like § 924(c)(3)(B), that] use terms like ‘substantial risk,’ ‘grave risk,’ and ‘unreasonable risk.’” Id. at 378 (alteration in original) (quoting Johnson, 135 S.Ct. at 2561). “The Court gave two reasons why that was not the case, and one of them directly distinguishes § 924(c)(3)(B)”: it does not “link[ ] a phrase such as ‘substantial risk’ to a confusing list of examples.” Id. (quoting Johnson, 135 S.Ct. at 2561).

In summary, “Johnson did not invalidate the ACCA residual clause because the clause employed an ■ ordinary case analysis[, the categorical approach,] but rather because of a greater sum of several uncertainties.” Id. The Court invalidated it because it contained a

double-layered uncertainty ... whieh required courts employing the categorical approach first to estimate the potential risk of physical injury posed by “a judicially imagined ‘ordinary case’ of [the] crime” at issue, and then to consider how this risk of injury compared to the risk posed by the' four enumerated crimes, which are themselves, the Court noted, “far from clear in - respect to the degree of risk each poses.” Id. at 2557-58 (quoting Begay v. United States, 553 U.S. 137, 143, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008)). It was these twin ambiguities—“combining indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the crime to qualify as a violent felony”—that offended the Constitution. Id. at 2558 (emphasis added); see also id. at 2560 (observing that “[e]ach of the uncertainties in the residual clause may be tolerable in isolation, but ‘their sum makes a task for us which at best could be only guesswork’ ” (quoting United States v. Evans, 333 U.S. 483, 495, 68 S.Ct. 634, 92 L.Ed. 823 (1948))).

Hill, 832 F.3d at 145-46, 2016 WL 4120667, at *8 (second and third alterations in original) (footnote omitted).

We therefore conclude that Johnson does not render § 924(c)(3)(B) unconstitutionally vague. As a result, we hold that the district court did not err in denying Prickett’s motion to dismiss Count II.

      . The Honorable Paul K. Holmes, III, Chief Judge, United States District Court for the Western District of Arkansas


author: KELLY, Circuit Judge.

text:
    UNITED STATES of America Plaintiff-Appellee v. Timothy DEFOGGI Defendant-Appellant
    No. 15-1209
    United States Court of Appeals, Eighth Circuit.
    Submitted: November 19, 2015
    Filed: October 6, 2016

      ■ Keith Anthony Becker, Trial Attorney, Sarah Chang, U.S. Department of Justice, Washington, DC, Michael P. Norris, Assistant U.S. Attorney, U.S. Attorney’s Office, Omaha, NE, for Plaintiff-Appellee.
    Timothy DeFoggi, Federal Correctional Institution, Fort Dix, NJ, pro se.
    Stuart J. Doman, Dornan & Lustgarten, Omaha, NE, for Defendant-Appellant.

      Before RILEY, Chief Judge, BEAM and KELLY, Circuit Judges.
   KELLY, Circuit Judge.

Timothy DeFoggi was convicted of multiple child pornography-related offenses following a jury trial. On appeal, he challenges several pretrial and trial rulings, argues there was insufficient evidence to support his convictions, and asserts his 300-month sentence was imposed in violation of the Eighth Amendment. We affirm in part and reverse in part.

I. Background

The FBI began an investigation in 2012 into a computer server in Bellevue, Nebraska, that was hosting child-pornography websites on the “Tor” network. The Tor network is designed to keep a user’s identity anonymous by requiring special software that obscures a user’s physical location. The network routed communications through a network of other computers, making traditional IP identification techniques ineffective. One of the hosted websites was called “PedoBook.” The website operated from March 2012 until December 2012, advertising and distributing child pornography and hosting discussions about the sexual abuse of children. On November 18, 2012, the FBI seized the computer server hosting PedoBook, but continued to operate the website for investigatory purposes until shutting it down completely on December 8, 2012. As part of this investigation, the FBI obtained an order from the United States District Court for the District of Nebraska allowing it to monitor electronic communications of PedoBook users. Both before and after its seizure by law enforcement, agents viewed, examined, and documented the contents of PedoBook, which contained thousands of photos and videos depicting images of child pornography.

PedoBook had over 8,100 members, each registered with a username and password. Once registered, a member could set up a profile with a picture, could request access to private groups, and could use a messages feature not available to other users. Members with profiles were able to set up groups based on specific interests and subcategories for posting distinct types of child pornography.

Timothy DeFoggi, the former acting director of cyber security at the United States Department of Health and Human Services, was a registered member and user of PedoBook. He used the username “fuckchrist” and the display name “Ptas-seater.” He registered on March 2, 2012. DeFoggi and other PedoBook members occasionally shared personal information, including e-mail addresses, in private messages so they could communicate with other PedoBook members and distribute child pornography on a one-to-one basis. Evidence showed that DeFoggi joined 32 groups on PedoBook between March 2, 2012, and December 8, 2012. Between April 19, 2012, and December 5, 2012, he exchanged numerous private messages with other PedoBook members expressing, among other things, an interest in the rape and murder of infants and toddlers,

DeFoggi moved to suppress evidence obtained through the interception of electronic communications and evidence obtained during a search of his residence. He also moved to preclude the government from introducing at trial what he termed “fantasy chat private messages” sent to and from his username, arguing the messages were not relevant and were overly prejudicial. The district court denied these motions.

After a jury trial, DeFoggi was convicted on all counts: knowingly engaging in a child exploitation enterprise in violation of 18 U.S.C. § 2252A(g) (Count 1), conspiracy to advertise child pornography in violation of 18 U.S.C. § 2251(d)(1) and (e) (Count 2), conspiracy to distribute child pornography in violation of 18 U.S.C. § 2252A(a)(2) and (b)(1) (Count 3), and knowingly accessing a means or facility of interstate commerce to view child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) (Counts. 4-7). The district court granted DeFoggi’s motion for judgment of acquittal in part by vacating the convictions on Counts 2 and 3 as lesser included offenses of Count 1, and denied his motion for a new trial.

On January 5, 2015, the court sentenced DeFoggi to 300 months’ imprisonment on Count 1, and lesser amounts for all other counts of conviction (Counts 4-7), to run concurrently. DeFoggi timely appealed.

II. Discussion

A. Application for Interception of Electronic Communication

DeFoggi argues that the district court erred in denying his motion to suppress evidence obtained through the interception of electronic communications, because the application to intercept his communications was not properly authorized. At the suppression hearing, however, the magistrate judge found to the contrary, and DeFoggi did not object to this finding. Noting DeFoggi’s lack of objection, the district court affirmed the magistrate judge’s finding. Because DeFoggi filed no objection to the magistrate judge’s report and recommendation on •this issue, “we review the findings of fact underlying his appeal for plain error and the admissibility of [the evidence obtained through the interception of his electronic communications] de novo.” United States v. Lockett, 393 F.3d 834, 837 (8th Cir. 2005).

An application to intercept electronic communications must contain the identity of the authorized official who approved it. See 18 U.S.C. § 2518(1). Intercepted electronic communications may be suppressed upon a showing that, as relevant here, “the order of authorization or approval undér which it was intercepted is insufficient on its face,” or “the interception was not made in conformity with the order of authorization or approval.” 18 U.S.C. § 2518(10)(a)(i)-(ii).

The application submitted in this case stated that “[a] copy of the memorandum of an official specially designated by the Attorney General of the United States authorizing this application is attached to this application as Exhibit A.” DeFoggi argues that he did not receive the memorandum attachment in discovery, and that there was nothing to show that the approving judge received the required memorandum either.,The government acknowledged to the district court that the memorandum may not have been included in the original discovery materials provided to DeFoggi at the start of the case. Whether or not DeFoggi received it, the relevant question for review is whether the approving judge had the document at the time she approved the application to intercept electronic communications.

At the hearing on DeFoggi’s motion to suppress, the government presented an uncertified copy of a letter signed by Kenneth A. Blanco, Deputy Assistant Attorney General. During the suppression hearing, the magistrate judge requested certified copies of the application and the authorizing letter from Blanco. DeFoggi does not allege that Blanco was not authorized to sign the application. See 18 U.S.C. § 2516(1) (a Deputy Assistant Attorney General is an officer qualified to authorize the application). Rather, he asserts that the letter identifying Blanco as the authorizing officer was not attached to the application submitted to the approving judge.

The failure to attach authorization documents can warrant suppression, see United States v. Lomeli, 676 F.3d 734, 741-42 (8th Cir. 2012), but here, the magistrate judge specifically found that “the Chief Judge of the U.S. District Court for the District of Nebraska authorized the interception of ... DeFoggi’s communications,” on November 18, 2012, and “[t]he application submitted in connection with that authorization included, as an exhibit, a copy of a memorandum signed by Kenneth A. Blanco _” The magistrate judge therefore concluded that “the authorizing judge ... had the name of the .actual, statutorily designated official who had indeed authorized the application,” and that DeFoggi’s motion to suppress should be denied. The district court adopted this finding. DeFoggi offers no argument as to why this finding is plainly erroneous, asserting only that “there is no record to demonstrate the approving judge received [the signed letter from Blanco].” But, after examining the exhibits, the court ruled otherwise. Under these circumstances, we cannot say the district court erred in finding that the application as presented to the district court included the necessary authorization documents. Because the application was properly authorized, and the district court had this information at the time of approval, the district court did not err in denying DeFoggi’s motion to suppress. See Lockett, 393 F.3d at 837.

B. Search Warrant

DeFoggi also argues the district court erred in denying his motion to suppress evidence obtained during the search of his home on April 9, 2013, because the affidavit in support of the warx-ant did not establish probable cause. In particular, he argues that there was insufficient information linking him to PedoBook, and thus no probable cause to believe that evidence of criminal activity would be found at his residence. “We review de novo the district court’s legal determination of probable cause.” United v. Hager, 710 F.3d 830, 836 (8th Cir. 2013) (citing United States v. Coleman, 700 F.3d 329, 334 (8th Cir. 2012)).

“Probable cause exists when there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Id. (quotations and citations omitted). We utilize a totality of the circumstances test and a common sense approach when reviewing whether probable cause exists. Id. (quotations and citations omitted). We “may draw reasonable inferences from the totality of the circumstances in determining whether probable cause exists to issue a warx-ant.” Id. (quotation omitted).

The search warrant here was suppoi'ted by probable cause. The warrant application included an affidavit written by Special Agent Patricia J. Teakle of the FBI, which carefully described PedoBook, the FBI’s methods of identifying its users, and the, link between DeFoggi and the website. As an initial matter, the affidavit explained that because it was on the Tor network, PedoBook could not be accessed without the installation of appropriate software and knowledge of its exact web address. A user could obtain the web address for the website directly from other users, or from internet postings describing PedoBook’s content and location, but not from any type of web search. Accessing PedoBook therefore required numerous affirmative steps by the user, making it extremely unlikely that a user would stumble upon it without knowing that its purpose was to advertise and distribute child pornography and understanding the content to be found there.

The affidavit also explained that, through the government’s monitoring and searches of the data logs once it had control of PedoBook, the FBI concluded that an account was created on or about April 18, 2012, with the username “fuckchrist” and display name “Ptasseater.” The affidavit included examples of activity conducted on PedoBook by that member, including the filenames of the child pornography images accessed and the private messages sent between that member and others. An FBI “online covert employee” contacted that member via the private messaging feature of PedoBook, and the member gave the FBI employee an email address (fuckchrist@tormail.org) and told him he normally accessed the Tor network from 4:00 a.m. to 6:00 a.m. and 4:30 p.m. to 6:00 p.m.

The affidavit then described how the FBI connected that username and display name to DeFoggi. Several pages of the affidavit discussed how DeFoggi used these same names for multiple child pornography websites, where he made comments very similar in substance and tone to those made on PedoBook. The FBI obtained an IP address associated with the account “ptasseater” from one such website—an image hosting website—which was connected to Verizon Internet Services. Verizon then provided the personal information for the individual associated with that IP address during the time period in which that user accessed child pornography on the image hosting site—and that individual was DeFoggi. Other IP addresses used to access child pornography were connected to DeFoggi in a similar manner.

Moreover, the affidavit explained that a subject under FBI investigation for activities related to child exploitation material had provided the FBI with information on an individual initially identified as “Jeff,” who was a member of “boylover.net,” a known website for underage male child pornography, and used a variety of email addresses including “ptasseater@hotmail. com.” The informant also provided the FBI with ,a cell phone number for “Jeff’ and told them of an individual who had personally met “Jeff.”

“Jeff’ turned out to be DeFoggi, and he told the individual (then under FBI surveillance) in-person that his real name was Tim, that he worked in the DC area, that he had a government security clearance, and that he had a domestic partner. An open source database check confirmed that DeFoggi lived at 20311 Crown Ridge Court, Germantown, Maryland. The FBI then confirmed through the United States Postal Service and visual surveillance that DeFoggi received mail at that residence and maintained a vehicle registered in his name there. The cell phone number for “Jeff’ was eventually linked to DeFoggi. Finally, through surveillance with a pen register and a trap and trace obtained for DeFoggi’s internet account, the FBI learned that computers in DeFoggi’s home were connected to the Tor network at the same times that “ptasseater” claimed to be online in the private chats over PedoBook.

DeFoggi counters that because a My-space profile included in the affidavit did not belong to him, the FBI had failed to link him to the accounts with the user-names “ptasseater” and “fuckchrist.” De-Foggi argues others could have used the same usernames, and that because the affidavit did not identify an IP address for DeFoggi that linked him directly to Pedo-Book (although the FBI connected IP addresses linked to DeFoggi to other child pornography websites), there was no probable cause. Given the cumulative information included in the search warrant application linking DeFoggi to multiple child pornography websites including PedoBook, these assertions do not detract from our conclusion that probable cause existed. The affidavit in support of the search warrant provided more than enough information to support a finding of probable cause to believe that evidence of criminal activity would be found at DeFoggi’s residence.

C. Evidence of Chat Messages

DeFoggi also argues that the district court erred in denying his motion to exclude evidence of his “fantasy chat messages” at trial because they were not relevant under Federal Rule of Evidence 401 and were unfairly prejudicial under Federal Rule of Evidence 403. Challenges to evidentiary rulings are reviewed for an abuse of discretion. United States v. Sewell, 457 F.3d 841, 843 (8th Cir. 2006). We will reverse only if an error “affects the substantial rights of the defendant” or has “more than a slight influence on the [jury’s] verdict.” United States v. Yarrington, 634 F.3d 440, 447 (8th Cir. 2011) (quoting United States v. Elbert, 561 F.3d 771, 775 (8th Cir. 2009)). “We will not reverse if the error was harmless.” Id.

Rule 401 states that to be relevant, evidence must tend to make a fact more or less probable or “be of consequence in determining the action.” Fed. R. Evid. 401. We have previously held that personal chats on child pornography websites are admissible as circumstantial evidence associating the defendant “with the child pornography found on his computer,” and that “the district court was within its discretion to admit” such chats. United States v. Manning, 738 F.3d 937, 943 (8th Cir. 2014). As in Manning, “portions of the chats contained identifying information about [De-Foggi].” Id In the chats, DeFoggi wrote at length about his interest in child pornography and solicited child pornography from other members of PedoBook. DeFog-gi’s chats therefore “revealed [his] identity, his preferences for different types of child pornography, and his desire to exchange child pornography with other people online.” Id. at 944. DeFoggi was charged with knowingly accessing a means or facility of interstate commerce to view child pornography, and the chats were relevant (once DeFoggi was connected to his usernames) as a means of identifying De-Foggi as the person knowingly accessing the child pornography on his computer. The district court thus did not abuse its discretion in determining that DeFoggi’s chats were relevant evidence under Rule 401.

DeFoggi argues that even if the chats were relevant, the district court nonetheless erred in admitting them because they were unfairly prejudicial due to their shocking nature. Relevant evidence may still be excluded if “its probative value is substantially outweighed by a danger of ... unfair prejudice.” Fed. R. Evid. 403. And we agree that chats fantasizing about raping and killing children “are by their very nature disturbing,” and “highly likely to generate an emotional response.” United States v. Evans, 802 F.3d 942, 946 (8th Cir. 2015). But the disturbing nature of otherwise relevant evidence cannot be the sole reason to exclude it. Id. (“[Rule 403] does not offer protection against evidence that is merely prejudicial in the sense of being detrimental to a party’s case,” but rather “evidence that is ‘unfairly prejudicial.’ ” (quoting United States v. McCourt, 468 F.3d 1088, 1092 (8th Cir. 2006))); see also United States v. Johnson, 463 F.3d 803, 809 (8th Cir. 2006).

While the pure volume of the chats admitted into evidence concerns us, see Evans, 802 F.3d at 946, DeFoggi makes only the most general of arguments on appeal as to how their admission prejudiced him. He does not identify any specific chats he believes are especially problematic; and he does not explain how the jury was prejudiced, how the chats may have unfairly affected their view of the charges against him, or how the chats were more disturbing than the images themselves. DeFoggi calls the chats “shocking,” but “does'not articulate what unfair prejudice resulted from the publication of this evidence to the jury.” Id. (citing McCourt, 468 F.3d at 1092, for the proposition that “[t]h'e Supreme Court has advised that Rule 403 requires a preliminary showing of unfair prejudice before the need to balance the probative value of the evidence and its alternatives arises”). Simply characterizing the evidence in this way does not give us sufficient grounds to conclude that the district court abused its discretion in admitting the chats. “Without a preliminary showing of prejudice, ‘we need not consider or weigh the probative value’ ” of the chats. Id. (quoting United States v. Worthey, 716 F.3d 1107, 1115 (8th Cir. 2013)).

D. Sufficiency of the Evidence

DeFoggi alleges that the government failed to adduce sufficient evidence to convict him beyond a reasonable doubt of a child exploitation enterprise and access with intent to view child pornography. We review the sufficiency of the evidence in a jury trial de novo, but examine the evidence in the light most favorable to the jury’s verdict, resolving factual disputes and accepting all reasonable inferences in support of the verdict. Manning, 738 F.3d at 945. We must uphold the jury’s verdict “if there is an interpretation of the evidence that would allow a reasonable-minded jury to conclude guilt beyond a reasonable doubt.” United States v. Thompson, 285 F.3d 731, 733 (8th Cir. 2002).

1. Count 1

DeFoggi was convicted of engaging in a child exploitation enterprise (CEE), in violation of 18 U.S.C. § 2252A(g). Section 2252A(g) provides:

(1) Whoever engages in a child exploitation enterprise shall be fined under this title and imprisoned for any term of years not less than 20 or for life.
(2) A person engages in a child exploitation enterprise for the purposes of this section if the person violates [certain other, sections] as a part of a series of felony violations constituting three or more separate incidents and involving more than one -victim, and commits those offenses in concert with three or more other persons.

DeFoggi argues that under the proper application of the term “in concert with,” the government provided insufficient evidence for the jury to convict him of engaging in a CEE based on the predicate counts of accessing child pornography. We decide this issue on narrow grounds. The indictment alleged that DeFoggi committed four separate predicate violations as defined in § 2252A(g). Specifically, the government charged four instances of accessing with intent to view child pornography in violation of 18 U.S.C. § 2252A(a)(5)(b) (Counts 4-7). Section 2252A(a)(5)(b) is violated if a person “knowingly accesses with intent to view, any ... computer disk, or any other material that contains an image of child pornography that has been ... shipped or transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means, including by computer.”

To convict DeFoggi of a CEE, there must be evidence that he committed at least three of the predicate offenses “in concert with” three or more people. Prece-dential guidance on the “in concert” language in the CEE offense is limited, but in construing 21 U.S.C. § 848(c), which proscribes a criminal drug enterprise, the Supreme Court has stated that “the plain meaning of the phrase ‘in concert’ signifies mutual agreement in a common plan or enterprise” sufficient to constitute a conspiracy. Rutledge v. United States, 517 U.S. 292, 300, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996). We agree with our sister circuits that the Supreme Court’s construction of 21 U.S.C. § 848 informs our reading of § 2252A(g). See United States v. Grovo, 826 F.3d 1207, 1213 (9th Cir.2016); United States v. Daniels, 653 F.3d 399, 413 (6th Cir. 2011); United States v. Wayerski, 624 F.3d 1342, 1351 (11th Cir. 2010). It follows from Rutledge’s holding that to act “in concert with” requires the same mens rea as a conspiracy charge. Grovo, 826 F.3d at 1213.

In this case, however, we do not see sufficient evidence that DeFoggi committed the predicate offenses of accessing child pornography “in concert with” anyone else—even assuming for purposes of analysis that “in concert with” means no more than an agreement. For each predicate count, the jury was presented with screenshots of other members’ profiles and the images DeFoggi clicked on that were uploaded to the profiles. But we do not understand how the single act of accessing an image with the intent to view it by clicking on it alone from behind one’s computer screen can be done “in concert with” anyone else—at least not on the facts presented here. The government argues that DeFoggi entered a “conspiracy” with three or more other people “to commit the offense of accessing with intent to view child pornography.” But even assuming without deciding that the CEE offense requires a conspiracy and nothing more, the evidence was insufficient here. Conspiracy requires an agreement to accomplish the specific illegal objective at issue—here, accessing child pornography. The evidence showed that many people voluntarily joined Pedo-Book in part to access child pornography. But that does not necessarily mean that DeFoggi, when he accessed child pornography on the specific occasions charged in the predicate counts 4-7, agreed to do so with anyone else. And the trial record is bereft of evidence of any such agreement in this case. Even if we further assume that participants in the enterprise need not act simultaneously, see id. at 1214, the government failed to offer evidence that DeFoggi acted in concert with anyone concerning the underlying elements of- the offense of accessing with intent to view child pornography as charged in Counts 4-7.

Like several of the defendants in the cases analyzed by our sister circuit's, De-Foggi participated in interactive features of the child pornography website at issue, such as private messaging between members. Yet that conduct is separate and apart from the offenses that constituted the underlying predicates necessary to sustain the child exploitation enterprise offense, i.e., accessing with intent to view child pornography. Whether or not DeFog-gi’s other PedoBook-related activities were proscribed by other statutes, the government failed to prove that DeFoggi was guilty of violation 18 U.S.C. § 2252A(g) as the offense was charged in this case.

2. Counts 4-7

DeFoggi also argues that no reasonable jury could have concluded beyond a reasonable doubt that he “intentionally” accessed PedoBook to view child pornography as charged in Counts 4-7. This is because, he asserts, (1) the government failed to provide any direct evidence that he was the person who was using, the computer to view PedoBook, (2) even if he did access PedoBook, he did so because he used the Tor network for work, not so that he could view child pornography, and (3) his chats did not show an intent to access or solicit child pornography because they were “mere fantasy.”

As previously discussed, evidence tied DeFoggi to the online username and display name “fuckchrist” and “Ptasseater” on the PedoBook website. The FBI’s investigation into those usernames through open source database searches, administrative subpoenas to DeFoggi’s internet service providers, and cooperation with foreign law enforcement revealed that the usernames belonged to DeFoggi. There was Tor traffic associated with those identities occurring at his residence in the early morning hours on the PedoBook website. In private chats on PedoBook, DeFoggi disclosed identifying information such as his geographic location and the times when he frequented PedoBook and other child pornography websites. His in-person meeting with another person under investigation established that his name was Tim and let the FBI know DeFoggi had a domestic partner who was unaware of his interests (information that eventually helped the FBI determine who at DeFog-gi’s address was accessing child pornography). DeFoggi had extensive knowledge of the Tor network, and PedoBook could not be discovered and accessed without it. The jury was reasonable in concluding that De-Foggi was accessing PedoBook.

Moreover, it was ' reasonable for the jury to conclude that DeFoggi accessed PedoBook with the intent to view child pornography. The fantasy chat messages ■ on PedoBook revealed “copious amounts of discussion concerning the exchange of child pornography with other users.” Manning, 738 F.3d at 945. DeFoggi disclosed identifying details about himself “in the context of discussing the exchange of child pornography with others,” Id. De-Foggi argues that those chats were “mere fantasy” and not indicative of solicitation or of a step toward obtaining child pornography. He argues that the chats are therefore “speech protected under the First Amendment.” However, the solicitation of child pornography can be proscribed without First Amendment concerns where a “statute penalizes speech that accompanies or seeks to induce a transfer of child pornography—via reproduction or physical delivery—from one person to another.” United States v. Williams, 553 U.S. 285, 294, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008). “[0]ffers to provide or requests to obtain child pornography are categorically excluded from the First Amendment,” Id. at 299, 128 S.Ct. 1830. DeFoggi asked other members of PedoBook where he could find certain videos and whether they had or could produce images for him. He then provided his email address to those other members. Such solicitations were not just “speech protected under the First Amendment,” as DeFoggi argues. Rather, the evidence presented at trial was sufficient to prove that he intended to access child pornography.

Additional evidence also showed that DeFoggi was accessing PedoBook and illustrated his specific intent to access child pornography in doing so. For instance, when the FBI executed the search warrant at DeFoggi’s residence, he had to be forcibly separated from his laptop, which was actively downloading a child pornography video. The laptop contained evidence of the username “fuckchrist” and a Yahoo Messenger profile for “PTasseater69.” In addition, the Tor browser bundle was found on the laptop with evidence of browsing activities on multiple child pornography sites, including PedoBook. Images of child pornography were also located on the computer. DeFoggi’s actions in attempting to maintain anonymity by creating user-names, registering as a member of the website, creating a profile page, selecting or accepting other members as “friends,” joining various subcategory groups, requesting or soliciting child pornography from other members, as well as the contents of his laptop when he was apprehended are more than enough to support a jury finding of intent.

The jury was free to accept or reject DeFoggi’s theory that someone else had used his computer or that he had accessed PedoBook for professional reasons. See United States v. Henley, 766 F.3d 893, 905 (8th Cir. 2014) (“In reviewing a challenge to the sufficiency of the evidence ... ‘a jury’s credibility determinations are virtually unreviewable.’ ” (quoting United States v. Perez, 663 F.3d 387, 391 (8th Cir. 2011))). He does no more than restate that argument here. Upon the evidence presented, we find that a reasonable jury could conclude beyond a reasonable doubt that DeFoggi accessed PedoBook and other websites with the intent to view child pornography.

The offense of accessing child pornography also requires an “interstate commerce” nexus. DeFoggi alleges that there is no evidence that the computer disk or other material containing visual depictions of child pornography were transported in interstate commerce because “[t]he interstate nexus must be established prior to the user’s access.” “The Internet is an instrumentality and channel of interstate commerce.” United States v. Havlik, 710 F.3d 818, 824 (8th Cir. 2013) (citing United States v. Trotter, 478 F.3d 918, 921 (8th Cir. 2007)). DeFoggi’s use of the internet to access and download images and videos from PedoBook is enough in this case to satisfy the interstate commerce nexus. Even if it were not, the content of Pedo-Book was uploaded by the website’s global users. The server that hosted the data that comprised the PedoBook website was located in Nebraska. A user accessing the website and its content from Maryland would be accessing data that was stored on and had traveled from a . server located in Nebraska. A reasonable trier of fact therefore could find that DeFoggi accessed the website with the intent to view child pornography that had been transported using a means or facility of interstate commerce. See id.

E. Jury Instructions

DeFoggi challenges Instruction 37, which begins with the sentence “You have heard evidence that the defendant committed offenses involving child pornography that were not charged in the Indictment.” DeFoggi argues that the sentence should have read: ‘You have heard evidence that the defendant committed similar acts in the past that were not charged in the Indictment.” But DeFoggi himself requested an instruction that included the language he now objects to, and his objection is therefore waived. See United States v. Davis, 826 F.3d 1078, 1082 (8th Cir.2016) (“When a party expressly agrees to an instruction, the doctrine of invited error applies,-and any objection to the instruction is waived.” (citations omitted)). Even if this issue were properly before us, De-Foggi fails to offer any argument as to why the objected-to language is erroneous. See United States v. Byrd, 542 F.2d 1026, 1029 (8th Cir. 1976) (citing United States v. Phillips, 522 F.2d 388, 391 (8th Cir. 1975)); see also Ahlberg v. Chrysler Corp., 481 F.3d 630, 634 (8th Cir. 2007) (holding points not meaningfully argued in opening brief are waived); United States v. Cruz-Zuniga, 571 F.3d 721, 725 (8th Cir. 2009) (“The district court has wide discretion in formulating instructions.” (quoting United States v. Long, 977 F.2d 1264, 1272 (8th Cir. 1992))). DeFoggi also renews his objection regarding a venue instruction, but offers no argument' as to why or how the district court' erred, so this objection is likewise waived. See Ahlberg, 481 F.3d at 634.

III. Conclusion

Because DeFoggi was improperly convicted of engaging in a child exploitation enterprise, we vacate his conviction and remand for resentencing. We affirm the judgments in all other respects.

      . The statute states in relevant part: "Each application for an order authorizing or approving the interception of a wire, oral, or electronic communication ... shall be made in writing upon- oath or affirmation to a judge of competent jurisdiction and shall state the applicant’s authority to make such application. Each application shall include the following information: (a) the identity of the investigative or law enforcement officer making the application, and the officer authorizing the application-" 18 U.S.C. § 2518(1).

      . DeFoggi repeats his assertion that his chat messages were overly prejudicial with regard to his motion for a new trial. We reject his challenge to the denial of his motion for a new trial based on his chat messages for these same reasons.

      . The parties do not dispute the CEE offense as charged involved more than one victim.

      . While DeFoggi argues, as others before him have done, that the statute requires each individual predicate felony to be committed "in concert with” three other persons, we agree with the Ninth and Sixth Circuits that “the more natural reading of § 2252A(g) is that 'the required total of three other persons may be tallied by considering the predicate counts together.’ ” Grovo, 826 F.3d at 1215 (quoting Daniels, 653 F.3d at 412).

      . We note that this argument appears to overlook the statutory requirement that a person charged with engaging in a CEE must commit three offenses, not simply agree to commit them, in order to be convicted. See 18 U.S.C. § 2252A(g).

      . See, e.g., Grovo, 826 F.3d at 1216 (“Both defendants posted hundreds of times, ... gained admission to the upper level of the ... board after being admitted and elevated through a vouching process, ... [and] repeatedly accessed and distributed child pornography.”); Wayerski, 624 F.3d at 1348 (defendants participated in a sophisticated group, communicated with each other, limited its membership, and "made specific requests for and purchased the production of new illicit material”).

      . DeFoggi also makes these assertions in support of his argument that there was insufficient evidence to convict him on Count 1. Given our ruling above, we consider them only as to Counts 4-7.

      . 18 U.S.C, § 2252(a)(5)(B) criminalizes a person who:
      knowingly possesses, or knowingly accesses with intent to view, any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography that has been mailed, or shipped or transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means, including by computer, or that was produced using materials that have been mailed, or shipped or transported in or affecting interstate or foreign commerce by any means, including by computer....

      . DeFoggi alleged that because the evidence was insufficient the district court abused its discretion in denying his motion for a new trial. As discussed in our analysis of DeFog-gi’s challenge to the sufficiency of the evidence, the evidence adequately supported the jury’s verdict on all but DeFoggi’s conviction for a child exploitation enterprise.

      . DeFoggi asserts various errors in the jury instructions as they relate to Count 1, including the definition of the phrase “in concert with.” He also reasserts other objections to the instructions as they relate to Count 1. Given our ruling above, we need not address these arguments.

      . DeFoggi contends that the 20-year mandatory minimum sentence for a child exploitation enterprise is a violation of the Eighth Amendment's ban on cruel and unusual punishment. As we vacate his conviction on that count, we need not address DeFoggi’s Eighth Amendment challenge.


author: LOKEN, Circuit Judge.

text:
    Nancy J. HARVEY, Plaintiff-Appellant, v. Carolyn W. COLVIN, Acting Commissioner of Social Security, Defendant-Appellee.
    No. 16-1841
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 22, 2016
    Filed: October 7, 2016

      Counsel who presented argument on behalf of the appellant was Thomas A. Krause, of Des Moines, IA. The following attorney(s) appeared on the appellant brief; Hugh M. Field, of Waterloo, IA.
    Counsel who presented argument on behalf of the appellee was Stuart G. Cox, of Dallas, TX. The following attorney(s) appeared on the appellee brief; Marisa Sil-verman, of Dallas, TX.
    Before LOKEN, GRUENDER, and BENTON, Circuit Judges.
   LOKEN, Circuit Judge.

Nancy Harvey applied for Social Security disability insurance benefits, alleging a disability onset date of September 1, 2010, the day she was fired from her last job as a retail store greeter. After an administrative hearing at which Harvey and a vocational expert testified, the Administrative Law Judge (“ALJ”) denied the application on January 10, 2014, concluding that Harvey suffered from severe but not listed impairments—mood disorder, anxiety disorder, residuals of brain tumor with surgical resection, degenerative disc disease of the thoracic and cervical spine, and scoliosis—but that Harvey was not disabled because, while she could not perform her past relevant work, she retained the residual functional capacity (“RFC”) to perform a limited range of light work. Harvey appealed to the Commissioner’s Appeals Council, submitting additional evidence. The Appeals Council denied review.

Harvey filed this action for judicial review of the ALJ’s decision, which is the final agency action when the Appeals Council denies review. Mackey v. Shalala, 47 F.3d 951, 953 (8th Cir. 1995). In a thorough opinion, the district court concluded that the ALJ’s decision is supported by substantial evidence on the administrative record as a whole and affirmed the denial of disability benefits. Harvey appeals. “We review the district court’s decision de novo, and will affirm if the Commissioner’s decision is supported by substantial evidence on the record as a whole, including the new evidence that was considered by the Appeals Council.” Van Vickle v. Astrue, 539 F.3d 825, 828 (8th Cir. 2008). Applying this deferential standard, we affirm.

L

Harvey- underwent surgery to remove a malignant brain tumor in 1980, at age eighteen, and received postsurgieal radiation therapy to her brain and spinal cord. Harvey then earned a four-year college degree and worked as a teacher’s aide, hostess, and telemarketer. Most recently, she worked as a Wal-Mart greeter. In January 2010, Harvey saw neurologist Islam Tafísh, complaining she was “slower than normal.” Dr. Tafísh examined Harvey and observed she had a “normal attention span,” “normal judgment,” and “good abstract thinking.” Dr. Tafísh ordered an MRI, the results of which showed Harvey had “some chronic radiation changes,” but no recurrent disease or mass effect. Dr. Tafísh found that radiation had caused moderate brain atrophy, which would remain stable because Harvey was no longer receiving radiation therapy. Dr. Tafísh opined that Harvey could “carry on a job and function normally as long as she gets enough training for the job, and this could take longer than what might be expected for the average person.”

In connection with her disability benefits application, Harvey underwent a consultative mental examination, including the Wechsler Memory Scale test, which showed her memory capacities were generally within the average range. She was diagnosed as having adjustment disorder with mixed anxiety and depressed mood. A 2012 neuropsychological evaluation concluded that Harvey’s, preoccupation with perceived slowness was the main inhibitor of her job performance, as she in fact had cognitive functioning “within age-adjusted normal limits.”

In September 2013, Harvey returned to neurologist Bahram Mokri at the Mayo Clinic, who had last examined Harvey in the 1980s after her brain tumor surgery. Harvey complained of “memory difficulties.” After an MRI, Dr. Mokri’s clinical report noted that Harvey’s “performance on neuropsychological testing is better than would be expected” given the cognitive problems she reported. Dr. Mokri reported that “Miss Harvey’s cognitive function has been somewhat slow, and I strongly suspect that this is a remote effect of radiation therapy.” In a November 18, 2013 letter to Harvey’s attorney, Dr. Mokri noted that Harvey is “suffering from remote effect of radiation therapy manifested by abnormalities of brain function.” Dr. Mokri stated, “I was impressed by Nancy’s slowness in performing mental tasks. Although, given enough time, she could come up with appropriate responses, it seemed that it took her a much longer time than usual.”

After Harvey testified at the administrative hearing, the ALJ asked the vocational expert whether a person who is limited to “performing light work” and “only simple, routine, and repetitive work, work that doesn’t require any close attention to detail or use of independent judgment on the job,” and who has physical limitations consistent with Harvey’s degenerative disc disease and scoliosis, could perform (i) Harvey’s past relevant work, or (ii) other light, unskilled jobs that exist in significant numbers in the national or Iowa economy. The vocational expert testified that a person with these limitations could not perform Harvey’s past relevant work but could perform several light, unskilled jobs that exist in significant numbers, such as usher and rental consultant. After considering the medical opinion. evidence, the ALJ determined that Harvey had the RFC to perform light, unskilled work, subject to the limitations listed in his hypothetical to the vocational expert. Considering Harvey’s age, education, work experience, and RFC, the ALJ found that Harvey could successfully adjust to light, unskilled jobs existing in the national and Iowa economy and therefore was not disabled as defined by the Social Security Act.

Harvey then appealed to the Appeals Council, submitting a letter dated September 2, 2014 to Harvey’s attorney in which Dr. Mokri noted that Harvey’s “major difficulty” is “overall slowness and slow processing,” which “has come upon her in a gradual fashion and has been gradually but relentlessly progressive.” Dr. Mokri opined that Harvey “has been suffering from the remote effect of radiation therapy” following removal of a brain tumor in the early 1980s. “Regretfully, these types of problems are progressive and with no available remedy.” In denying review, the Appeals Council stated that this additional evidence “does. not provide. a basis for changing the [ALJ’s] decision.”

II.

On appeal, Harvey first argues, as she did to the district court, that the ALJ’s RFC determination is flawed because it fails to properly incorporate examining doctors’ observations about her slow pace. The district court concluded that the ALJ “properly considered. and accounted for” this limitation by limiting Harvey’s RFC to “simple, repetitive, and routine tasks” and by finding that she “cannot pay close attention to detail or use independent judgment,” citing our decisions in Howard v. Massanari, 255 F.3d 577, 581-82 (8th Cir. 2001), and Brachtel v. Apfel, 132 F.3d 417, 421 (8th Cir. 1997). We agree. The ALJ expressly incorporated into the RFC work-related limitations suggested by medical source opinions regarding Harvey’s slow pace, including Dr. Tafish’s opinion that Harvey might need additional training time and Dr.' Mokri’s opinion about Harvey’s memory and cognitive decline.

Harvey, next argues that the additional evidence she submitted to the Appeals Council cast doubt on the ALJ’s RFC determination, requiring a remand for consideration of this evidence by the ALJ. Like the district court, we disagree. Dr. Mokri’s September 2014 letter simply restated his conclusions from the clinical report and November 2013 letter, which the ALJ had already considered. Cumulative evidence submitted to the Appeals Council “does not undermine the ALJ’s RFC determination.” Perks v. Astrue, 687 F.3d 1086, 1093 (8th Cir. 2012).

Finally, Harvey argues the RFC is legally flawed because it was not supported by substantial medical evidence from a treating or examining source. This misstates the governing principle. “Because a claimant’s RFC is a medical question, an ALJ’s assessment of ⅜ must be supported by some medical evidence of the claimant’s ability to function in the workplace .... Nevertheless, in evaluating a claimant’s RFC, an ALJ is not limited to considering medical evidence exclusively.” Cox v. Astrue, 495 F.3d 614, 619 (8th Cir. 2007). Here, we agree with the district court that the ALJ properly weighed and considered the extensive medical evidence in the record in making the RFC determination. See Lockwood v. Colvin, 627 Fed.Appx. 575, 577 (8th Cir. 2015).

Following careful de novo review, we agree with the district court that substantial evidence on the record as a whole supports the ALJ’s decision. Accordingly, the judgment of the district court is affirmed.

      . The Honorable Jon Stuart Scoles, Chief Magistrate Judge of the United States District Court for the Northern District of Iowa, who was designated to decide the case on the merits with th.e consent of the parties pursuant to 28 U.S.C. § 636(c).


author: BENTON, Circuit Judge.

text:
    Robert J. PARKER, Plaintiff-Appellant, v. CRETE CARRIER CORPORATION, Defendant-Appellee. American Trucking Association, Amicus on Behalf of Appellee.
    No. 16-1371
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 21, 2016
    Filed: October 12, 2016

      Counsel who presented argument on behalf of the appellant was Abby Osborn, of Lincoln, NE. The following attorney(s) appeared on the appellant brief; Joy Shiffer-miller, of Lincoln, NE., Abby Osborn, of Lincoln, NE.
    Counsél who presented argument on behalf of the appellee was Nichole S. Bogen, of Lincoln, NE. The following attorney(s) appeared on the appellee brief; Nichole S. Bogen, of Lincoln, NE.
    Before LOKEN, GRUENDER, and BENTON, Circuit Judges.
   BENTON, Circuit Judge.

Crete Carrier Corporation required its truck drivers with Body Mass Indexes (BMIs) of 35 or greater to get medical examinations to determine whether they had obstructive sleep apnea. Crete ordered driver Robert J. Parker to undergo an examination because his BMI was over 35. Parker refused. Crete stopped giving Parker work. Parker sued Crete, alleging it violated the Americans with Disabilities Act (ADA) by requiring the examination and discriminating on the basis of a perceived disability. The district court granted summary judgment to Crete. Parker appeals. Having jurisdiction under 28 U.S.C. § 1291, this court affirms,

I.

Crete hired Parker as an over-the-road truck driver in 2006. As a driver of a commercial motor vehicle for a motor carrier, Parker was bound by regulations issued by the U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA). See 49 C.F.R. § 391.1(a). Under the regulations, drivers must get medical examinations from FMCSA-certified examiners every two years. 49 C.F.R. §§ 391.43(a), 391.45(b)(1). Drivers cannot operate commercial motor vehicles unless an examiner certifies them as physically qualified to do so. 49 C.F.R. § 391.41(a). During this examination—a “DOT physical”—the examiner measures height and weight; takes a health history; tests vision, hearing, blood pressure, and urine; and physically examines numerous body systems. See 49 C.F.R. § 391.43. To receive certification, a driver must not have impairments that interfere with driving. See 49 C.F.R. § 391.41(b).

Two FMCSA advisory committees—the Medical Review Board (MRB) and Motor Carrier Safety Advisory Committee (MCSAC)—have recommended that FMCSA change its certification standards to reduce the risks from drivers who have obstructive sleep apnea. Individuals with sleep apnea temporarily stop breathing during sleep. The most common form of sleep apnea is obstructive sleep apnea, where tissues around the upper respiratory tract relax and physically block the airway.

In 2008, the MRB found that obstructive sleep apnea causes daytime sleepiness, making drivers more likely to have accidents. It recommended testing some drivers for obstructive sleep apnea. Med. Review Bd., Fed. Motor Carrier Safety Admin., U.S. Dep’t of Transp., January 28, 2008 MRB Meeting Summary 2-11 (2008), available at https://www.fmcsa.dot. gov/sites/fmcsa.dot.gov/files/docs/Fin_ Meet_Min_Jan28_2008MRB_Meet_ Revisedll-24-09.pdf. In February 2012, the MRB and MCSAC recommended that drivers with BMIs over 35 receive only conditional DOT certification and undergo an additional examination for obstructive sleep apnea. Motor Carrier Safety Advisory Comm. & Med. Review Bd., Fed. Motor Carrier Safety Admin., U.S. Dep’t of Transp., MCSAC and MRB Task 11-05 Final Report on Obstructive Sleep Apnea 1-2 (2012), available at https://www.fmcsa, dot.gov/february-6-2012-mcsac-and-mrb-task-ll-05-final-report-obstructive-sleep-apnea-osa. They noted that obstructive sleep apnea can be diagnosed by three methods. Id. at 3. The “more comprehensive” method is in-laboratory polysomnog-raphy, an “in-lab sleep study.” Id. In-lab sleep studies are conducted at sleep centers, where staff put electrodes on patients’ bodies and observe and record them while they sleep.

The MRB has since changed its recommendations. In 2016, it recommended sleep studies for drivers who either (1) have BMIs of 40 or above, or (2) have BMIs of 33 or above plus additional risk factors. Med. Review Bd., Fed. Motor Carrier Safety Admin., U.S, Dep’t of Transp., Draft Task 16-01 Discussion Notes (2016), available at https://www.fmcsa.dot.gov/ advisoiy-committees/mrb/draft-task-16-01-discussion-notes-8232016. It now calls in-lab sleep studies the “preferred” method of diagnosis. Id.

In 2010, Crete began a sleep apnea program based primarily on MRB arid MCSAC recorhmendations. The program required drivers at risk for obstructive sleep apnea to undergo in-lab sleep studies. Drivers found to have obstructive sleep apnea were placed on a treatment regimen. Crete implemented the program in stages, first at larger terminals and then at smaller facilities. Crete added Parker’s facility in July 2013. That month, Crete told Parker that, due to his size, it was scheduling him for an in-lab sleep study. Crete required an in-lab sleep study if either (1) the driver’s BMI was 35 or above, or (2) the driver’s physician recom-merided a sleep study. At Parker’s most recent DOT physical, his BMI was over 35.

On July 11, 2013, Parker visited a certified physician assistant not affiliated with Crete. Eleven days later, the PA-C wrote a prescription stating, in whole, “I do not feel it is medically necessary for Robert to have a sleep study.” The next week, Parker refused Crete’s required sleep study. Crete took Parker out of service. The next day, Parker gave the PA-C’s prescription to Crete. Crete did not reinstate Parker.

Parker sued Crete, alleging it required a medical examination violating 42 U.S:C. § 12112(d)(4)(A), and discriminated against him because it regarded him as having a disability, violating 42 U.S.C. § 12112(a). During discovery, Crete submitted the report of Dr. Richard J. Schwab, an expert on sleep apnea. Parker moved in limine to exclude his testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Parker moved for partial summary judgment. Crete moved for summary judgment. The district court denied Parker’s summary judgment and Daubert motions, and granted summary judgment to Crete.

II.

A district court’s decision to admit expert testimony stands unless it abused its discretion. Russell v. Whirlpool Corp., 702 F.3d 450, 455 (8th Cir. 2012). Federal Rule of Evidence 702 states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702, The district court found that the report met Rule 702’s standards because of Dr. Schwab’s “specialized knowledge in the field of obesity and obstructive sleep apnea, his creation and review of a significant amount of peer-reviewed scientific- literature, his extensive training in the field, and his observations in reading 700 sleep studies annually.” The district court then relied on Dr. Schwab’s report for: the danger posed by drivers with obstructive sleep apnea, the usefulness of obesity and specific BMIs in screening drivers for sleep studies, the validity of sleep studies for diagnosing obstructive sleep apnea, and the availability of treatment for obstructive sleep apnea.

Parker argues that Dr. Schwab lacked sufficient data to diagnose him. He also contends that Dr. Schwab’s opinion was unreliable because Dr. Schwab said a sleep study is needed to confirm or refute an obstructive sleep apnea diagnosis and Dr. Schwab did not conduct a sleep study of Parker. These arguments misunderstand Dr. Schwab’s report. He stated that because Parker had four risk factors for obstructive sleep apnea (hypertension, snoring, obesity, and polycythemia), he likely had the condition. Parker does not support his claims that this statement was unreliable. In any event, the district court did not rely on that part of Dr. Schwab’s report in granting summary judgment. Parker does cite articles that he claims “have challenged the reliability of’ Dr. Schwab’s methodology. These articles, Parker says, differ from Dr. Schwab’s report on questions of the prevalence of obstructive sleep apnea and the reliability of BMI as a sleep apnea predictor. Even accepting Parker’s characterization of these articles, they do not suggest the district court abused its discretion. The fact that others might disagree with Dr. Schwab does not mean his opinions are inadmissible under Rule 702. “[I]t is not the province of the court to choose between the competing theories when both are supported by reliable scientific evidence.” Kuhn v. Wyeth, Inc., 686 F.3d 618, 633 (8th Cir. 2012). Because Parker does not show an abuse of discretion, the district court properly denied Parker’s motion.

III.

A grant of summary judgment is reviewed de novo. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). Crete is entitled to summary judgment if, viewing the facts most favorably to Parker, there is no genuine issue of material fact. See id.

A.

The ADA prohibits employers from “requiring] a medical examination ... unless such examination ... is shown to be job-related and consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(A). When an employer requires a medical exam of its employees, the employer has the burden of showing that the exam is job-related and that “the asserted ‘business necessity’ is vital to the business and the request for a medical examination or inquiry is no broader or more intrusive than necessary.” Thomas v. Corwin, 483 F.3d 516, 527 (8th Cir. 2007). “[C]ourts will readily find a business necessity if an employer can demonstrate ... a medical examination or inquiry is necessary to determine ... whether the employee can perform job-related duties when the employer can identify legitimate, non-discriminatory reasons to doubt the employee’s capacity to perform his or her duties.” Id., quoting Conroy v. N.Y. State Dep’t of Corr. Servs., 333 F.3d 88, 98 (2d Cir. 2003) (alterations in original). “The examination or inquiry need not be the only way to achieve a business necessity, but it must be a reasonably effective method to achieve the employer’s goals.” Id.

According to Parker, Crete failed to consider his individual characteristics before mandating the sleep study. But the text of § 12112(d)(4)(A) does not require employers to consider each employee’s unique characteristics before requiring a medical exam. Neither does the statutory context. To the contrary, exams of all new employees are permitted under certain circumstances. See 42 U.S.C. § 12112(d)(3). The ADA permits employers to require a class of employees to get medical exams. See Conroy, 333 F.3d at 100-01.

When an employer requires a class of employees to submit to a medical exam, it also “must show that it has reasons consistent with business necessity for defining the class in the way that it has.” Conroy, 333 F.3d at 101. An employer satisfies this burden by showing a “reasonable basis for concluding” that the class poses a genuine safety risk and the exam requirement allows the employer to decrease that risk effectively. See id A class may include some individuals who testing reveals do not pose a safety risk. And it may exclude others who testing would reveal do pose a safety risk. All that is required is that “the employer has defined the class of employees reasonably.” See id

Crete required a class of employees— drivers with BMIs of 35 or above—to submit to an in-lab sleep study, a medical exam. Crete established the following facts: Untreated obstructive sleep apnea tends to impair driving skills, increasing the risk of motor vehicle accidents by 1.2-to 4.9-fold. A sleep study is the only way to confirm or rule out an obstructive sleep apnea diagnosis. An in-lab sleep study is the gold standard for diagnosing obstructive sleep apnea. Obesity is the primary anatomic risk factor for obstructive sleep apnea. A BMI of approximately 33 is the optimal cut-off to identify subjects likely to have obstructive sleep apnea. Screening with a BMI above 33 has a sensitivity of 76.9% (meaning 76.9% of people with obstructive sleep apnea have a BMI above 33) and a specificity of 70.5% (meaning 70.5% of people who do not have the condition do not have a BMI above 33). Obstructive sleep apnea can be treated, decreasing the risk of motor vehicle accidents. Parker has offered no evidence contrary to these facts, nor anything that would lead a reasonable factfinder to doubt them.

By the undisputed facts, the sleep study requirement is job-related because it deals with a condition that impairs drivers’ abilities to operate their vehicles. It is consistent with business necessity: An examination is necessary to determine whether an individual has obstructive sleep apnea, a condition that poses a public safety hazard by increasing the risk of motor vehicle accidents. See Thomas, 483 F.3d at 527. And Crete had reasons to suspect that Parker had sleep apnea, given his BMI. The in-lab sleep study is no broader or more intrusive than necessary because an examination is needed to diagnose obstructive sleep apnea and an in-lab sleep study is the best way to diagnose it. Crete was reasonable to define the class as drivers with BMIs of 35 or above because (1) it has a reasonable basis for concluding that class poses a safety risk given the correlation between high BMIs and obstructive sleep apnea, and (2) the sleep study requirement allows Crete to decrease the risk posed by that class by ensuring that drivers with sleep apnea get treatment.

Parker argues that even if Crete could require some class to undergo sleep studies, it violated the ADA by including him in it. He claims that four characteristics make his inclusion unreasonable. First, he had no documented sleep issues at work. Second, he received a DOT certification. Third, he was awarded in 2012 for five years of accident-free driving, and named a top trainer. Fourth, his personal medical provider did not feel a sleep study was medically necessary. He concludes that these characteristics removed him from any class that Crete could validly require to undergo a sleep study. Parker essentially asserts that Crete defined the class unreasonably: Rather- than defining the class as “drivers with BMIs of 35 or above,” it should have defined the class as “drivers with BMIs of 35 or above unless they have (1) no documented sleep issues, (2) DOT certification, (3) accident-free and top-trainer awards, and (4) prescriptions from medical providers who believe sleep studies not necessary for them.” But the characteristics that Parker points to do not undermine Crete’s reasonable basis for concluding he poses a genuine safety risk. None of the characteristics establish that he does not suffer from sleep apnea. Crete carries its burden of showing it defined the class reasonably. The district court correctly granted Crete summary judgment on Parker’s medical-examination claim.

B.

The ADA prohibits employers from discriminating against employees “regarded as having ... an impairment.” See 42 U.S.C. §§ 12102(1)(C), 12112(a). A plaintiff alleging regarded-as discrimination may make out a prima facie case using the McDonnell Douglas burden-shifting framework. See Norman v. Union Pac. R.R. Co., 606 F.3d 456, 459 (8th Cir. 2010). Parker must first show (1) Crete regarded him as having a disability, (2) he had the qualifications to perform the essential functions of his position with or without reasonable accommodation, and (3) Crete took an adverse action due do his perceived disability. See id. If Parker succeeds in establishing a prima facie case, the burden shifts to Crete to proffer a legitimate, nondiscriminatory reason for the adverse action. See Kratzer v. Rockwell Collins, Inc., 398 F.3d 1040, 1044 (8th Cir. 2005). If Crete makes such a proffer, the burden shifts back to Parker to show that Crete’s stated reason is a pretext. See id.

Parker argues that Crete regarded him as having obstructive sleep apnea, an impairment. The district court assumed without deciding that Pai-ker satisfied the first three parts of his prima facie case. The burden then shifts to Crete. Crete carries its burden. It says it suspended Parker because he refused a sleep study. That requirement, for the reasons discussed, is legitimate and non-discriminatory. The burden shifts back to Parker to show Crete’s stated reason is pretext. Parker does not make such a showing. In fact, Parker says on appeal that Crete’s stated reason is its genuine reason: “[Crete] did not have any cause, other than to retaliate against [Parker] for asserting his rights under the ADAAA to refuse to participate in an unlawful medical examination, to discontinue providing [him] work.” Parker is right that the only conceivable reason that Crete suspended him is that he failed to comply with Crete’s sleep-study requirement. But, as discussed, Parker is wrong that the sleep study requirement was unlawful. The undisputed evidence shows that Crete suspended Parker for refusing to submit to a lawful medical examination. That does not violate the ADA. Since Crete’s stated reason for suspending him was not pretext, Parker’s claim fails.

# ⅜: # ⅜ # # ⅝;

The judgment of the district court is affirmed.

      . The Honorable Richard G. ICopf, United States District Judge for the District of Nebraska.