United States v. Harvey, No. 17-1370 (8th Cir. 2018)
Annotate this CaseThe Eighth Circuit affirmed defendant's sentence for receipt of child pornography after the district court vacated his conviction for the lesser-included possession of child pornography count. The court held that the district court did not abuse its discretion by denying defendant's motion to produce PSRs for all cases in the district involving possession or receipt of child pornography; by vacating the possession count where the greater weight of authority in situations with a greater offense and a lesser-included offense was to vacate the lesser-included offense; by disregarding the child pornography guidelines on policy grounds; and by sentencing defendant to 74 months in prison where it provided adequate explanation for its decision and the sentence was not substantively unreasonable.
Court Description: Loken, Author, with Beam and Kelly, Circuit Judges] Criminal case - Sentencing. For the court's prior opinion directing the district court to vacate either defendant's conviction for receipt of pornography or his conviction for possession, see United States v. Harvey, 829 F.3d 586 (8th Cir. 2016), relying on Ball v. United States, 470 U.S. 856 (1985). On remand the district court vacated the lesser-included count for possession of child pornography and again imposed a 74-month sentence. The district court did not abuse its discretion when it denied defendant's motion to produce PSRs for all cases in the district involving possession or receipt of child pornography as this court had held that sentencing practices of one district court judge are not a reference point for other judges, and production of the materials would violate longstanding judicial policies protecting the confidentiality of such information; the greater weight of authority in situations with a greater offense and a lesser-included offense is to vacate the lesser-included offense and the court did not abuse its discretion by vacating the possession count; the district court may disregard the child pornography guidelines on policy grounds but is not required to do so; the district court provided adequate explanation for its sentencing decision and the sentence was not substantively unreasonable.
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