United States v. Francis Kistler, No. 22-1514 (8th Cir. 2023)
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A grand jury indicted Defendant, a former sheriff’s deputy, on six counts: attempting to induce a minor to produce child pornography, enticement of a minor, and transferring and attempting to transfer obscenity to a person under the age of 16. Defendant pleaded guilty to a superseding information charging him with the conduct underlying Counts 3 and 4 under a single count. In exchange, the government agreed to dismiss the original indictment. The parties also agreed to recommend a sentence of 120 months imprisonment. At sentencing, the district court sustained Defendant’s objection to a two-level enhancement pursuant to U.S.S.G. Section 2G1.3(b)(3)(A). Defendant challenged his sentence’s length.
The Eighth Circuit affirmed. The court explained that the district court emphasized that the Guidelines did not adequately account for the seriousness of Defendant’s offense and the need to send an accurate message to the community. Given the clarity of the district court’s rationale for its variance, any procedural error in the upward departure was harmless. Accordingly, even if the district court erred procedurally in its departure analysis, any error is harmless considering the court’s rationale for its alternative variance. The court wrote that Defendant has shown no likelihood that his sentence would be more favorable should he be resentenced based on the alleged error.
Court Description: [Before Smith, Author, and Benton and Stras, Circuit Judges] Criminal case - Sentencing. Any procedural error in granting an upward departure is harmless where, as here, the district court makes it clear that the sentence is also based on an upward variance under the 3553(a) factors; the sentence is not substantively unreasonable, and the district court weighed the 3553(a) factors and adequately explained its sentencing decision.
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