Submitted: January 8, 2018
from United States District Court for the District of
Nebraska - Omaha
LOKEN, BEAM, and KELLY, Circuit Judges.
jury charged Donald Harvey with receipt of child pornography
in violation of 18 U.S.C. § 2252A(a)(2) (Count I), and
possession of child pornography in violation of 18 U.S.C.
§ 2252(a)(4)(B) (Count II). The factual basis for both
counts was child pornography found when police searched the
Toshiba hard drive from Harvey's laptop computer. Before
trial, Harvey pleaded nolo contendere, admitting a factual
basis for both counts. Harvey moved to withdraw his plea. The
district court denied the motion after a hearing and
subsequently imposed concurrent sentences of 74 months in
prison on each count, varying downward from the advisory
guidelines range of 135 to 168 months. Harvey timely
appealed. We affirmed the denial of his motion to withdraw
the plea. However, we concluded that both counts are based on
the same act or transaction and therefore convictions on both
violated the Double Jeopardy Clause; we remanded to the
district court "to exercise its discretion to vacate one
of the underlying convictions and to resentence Harvey."
United States v. Harvey, 829 F.3d 586, 591 (8th Cir.
2016), quoting Ball v. United States, 470 U.S. 856,
864 (1985). On remand, the district court vacated Count II,
the lesser-included possession count, and again imposed a
74-month sentence. Harvey appeals, arguing a number of
sentencing issues initially raised during the resentencing
proceedings. We affirm.
the resentencing issues involve the nature of Harvey's
offense, we begin with background facts stated in our prior
opinion, Harvey, 829 F.3d at 588:
early 2014, Omaha Police arrested and detained Harvey on a
charge unrelated to this case and seized his Toshiba laptop.
From jail, Harvey asked his friend Rinat Chase to pick up his
laptop from the Omaha Police Department and check the laptop
to make sure his personal documents and photos were still on
the laptop. Chase picked up the laptop, but she was unable to
log on to the laptop using the passwords Harvey gave her.
took the laptop to a computer repair store. An employee at
the store advised Chase the laptop would be expensive to
repair, but the store could transfer the information from the
laptop's hard drive to another device. Chase brought her
own external hard drive to the store for the transfer. A few
days later, Chase picked up her external hard drive, looked
through its contents, and discovered what she believed was
May 21, 2014, a judge released Harvey on bond in the
unrelated case and ordered him to report to the Salvation
Army Adult Rehabilitation Facility. Chase picked him up from
the jail and the next day drove him to the Salvation Army.
Before she dropped him at the Salvation Army, Chase helped
Harvey run some errands, and she bought him a new cell phone.
Harvey was continuously on the cell phone until Chase dropped
him off. Later, Chase brought Harvey's laptop to him at
the Salvation Army and picked up the cell phone she purchased
Harvey. Chase looked through Harvey's internet browsing
history on the phone and clicked on a link, which took her to
a website containing videos of prepubescent males and females
engaged in sexual acts.
July 7, 2014, Chase reported to the Bellevue Police
Department that she discovered child pornography on
Harvey's computer and that Harvey had viewed child
pornography on the cell phone she purchased for him. The next
day, Bellevue Police obtained and executed search warrants
for the cell phone and Chase's external hard drive, which
still contained the files the computer repair store
transferred from Harvey's laptop. In the search, police
found child pornography on the external hard drive.
also went to the Salvation Army to seize Harvey's laptop,
but the laptop was in pieces and the hard drive was missing.
A week later, however, an employee at the Salvation Army was
cleaning a bookshelf in a common area when he found the
Toshiba hard drive from Harvey's laptop hidden behind
some books. The Salvation Army gave the hard drive to the
Omaha Police Department, which in turn gave it to the
Bellevue Police Department.
"Bellevue Police obtained a search warrant and searched
the hard drive. In the search, police discovered 36 videos of
child pornography with creation dates ranging from November
2012 through May 2013."
appeal, Harvey first argues the district court abused its
discretion when it (a) denied his request to issue subpoenas
directing the District of Nebraska Probation Office to permit
Harvey's "experts" at the University of
Nebraska to examine presentence investigation reports (PSRs)
"for all of the federal prosecutions for possession or
receipt of child pornography within the District of Nebraska
since the effective date of the PROTECT Act in 2005, "
and (b) refused his demand to take judicial notice of PSRs
and other documents "in a variety of child pornography
cases." Harvey argues this discovery was needed so that
his experts could assess whether there are "marked
discrepancies between the sentencing patterns for each of the
Article III judges who have handled these cases" that
would establish a pattern of unwarranted sentencing
disparities violating 18 U.S.C. § 3553(a)(6).
declining to revisit its rulings, the district court observed
at resentencing that it would not allow "going in and
studying [PSRs] and sentencings in other cases" because
"every case is unique." That ruling is consistent
with prior decisions of this court. We have declined to
require that a district judge "must compare and contrast
the defendant under consideration with a similar offender who
has been sentenced by another federal judge." United
States v. Barron, 557 F.3d 866, 869 (8th Cir. 2009).
"The sentencing practices of one district court are not
a reference point for other courts." United States
v. Soliz, 857 F.3d 781, 783 (8th Cir. 2017). Thus,
Harvey's reliance on § 3553(a)(6) to establish an
abuse of discretion based on sentencing ...