United States v. Lamark Combs, Jr., No. 21-3448 (8th Cir. 2022)
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Facing five child-pornography counts and one for enticing a minor, Defendant decided to enter into a plea agreement with the government. Of the six counts, he pleaded guilty to three of them: two for receiving child pornography, each from a separate victim. When the presentence investigation report said he was responsible for receiving pornographic images from two others, Minor Victim 3 and H.P., he filed a written objection. At sentencing, the fact dispute never came up. Defendant did not renew his objection, the government did not present evidence that he had received sexually explicit material from Minor Victim 3 or H.P., and the district court never made any findings. Without ever resolving the factual dispute that the presentence investigation report had flagged, the court sentenced him to 210 months in prison.
The Eighth Circuit vacated Defendant’s sentence and remanded for resentencing. The court explained that agrees that Defendant specifically objected to receiving sexually explicit images from Minor Victim 3 and H.P., meaning that the district court could not rely on those facts unless the government proved them by a preponderance of the evidence. The government never did so, yet the district court sentenced Defendant as if it had. The government does not dispute that the error here was “clear or obvious.” Instead, the focus is on the next step in the plain-error analysis: whether the procedural error affected Defendant’s substantial rights. The court vacated the sentence explaining that a failure to correct the error will also seriously affect the fairness, integrity, and public reputation of judicial proceedings.
Court Description: [Per Curiam - Before Shepherd, Erickson, and Stras, Circuit Judges] Criminal case - Sentencing. Defendant objected to a portion of the PSR which stated he was responsible for receiving pornographic images from other victims, but the matter was not raised or resolved at sentencing; by not raising the matter at sentencing, defendant forfeited the claim; however, on plain error review, it is clear that the district court substantially increased defendant's sentence based on the objected-to conduct; the error is plain, and the matter is remanded for resentencing; it will be up to the district court to determine whether to reopen the record for additional evidence on remand. [ August 11, 2022 ]
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