United States v. Kocher, No. 18-1410 (8th Cir. 2019)
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The Eighth Circuit affirmed the district court's imposition of a 24 month supervised release revocation sentence. The court held that the district court did not commit plain procedural error by basing its sentence on a fact not supported by the record. In this case, the district court's finding that defendant committed the crime of viewing child pornography was directly contradicted by the record, and the district court's statement, "crime is committed," viewed in context, either meant "a violation is committed," referring to the admitted supervised release violations, or referred to a string of facts well established by the record -- defendant's initial child pornography offense, his persistent refusal to comply with a legal obligation to participate in and complete sex offender treatment, and his repeated violations of conditions limiting his access to computers and pornographic websites.
The court also held that the district court adequately explained its sentencing decision, considered defendant's mitigation claims, and did not impose an unduly harsh penalty. Accordingly, the sentence was not substantively unreasonable.
Court Description: Loken, Author, with Colloton and Kelly, Circuit Judges] Criminal case - Sentencing. Defendant's contention that the district court found he committed the crime of viewing child pornography is directly contradicted by the sentencing record; the district court did not commit plain procedural error by basing its sentence on a fact not supported by the record; the court adequately explained its sentencing decision, adequately considered defendant's mitigation arguments and did not impose an unduly harsh penalty.
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