United States Court of Appeals

For the Eighth Circuit

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No. 14-1519

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United States of America,

lllllllllllllllllllll Plaintiff - Appellee,

v.

Joshua M. Meyer,

lllllllllllllllllllll Defendant - Appellant.

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 Appeal from United States District Court 

for the District of Nebraska - Omaha

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 Submitted: October 10, 2014

 Filed: April 17, 2015

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Before COLLOTON, BRIGHT, and SHEPHERD, Circuit Judges.

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COLLOTON, Circuit Judge.

Joshua Meyer pleaded guilty to receipt and possession of child pornography in

violation of 18 U.S.C. §§ 2252(a)(2) and 2252(a)(4)(B). Using websites and a peerto-peer file-sharing program, Meyer accessed and downloaded over 300 videos and
700 images of child pornography. The district court1

 sentenced Meyer to 120 months’

imprisonment. Meyer appeals, challenging his sentence on both procedural and

substantive grounds. We affirm.

Meyer argues first that the district court erred at sentencing by relying on

information that was not disclosed to him, in violation of Federal Rule of Criminal

Procedure 32. The information at issue concerns another child pornography case,

involving a defendant named Partain, in which the district court imposed sentence the

week before Meyer’s sentencing. During Meyer’s sentencing hearing, the government

urged the court to impose a sentence of 210 months’ imprisonment, at the bottom of

the advisory guideline range. At the outset, the prosecutor remarked that he had

sought a sentence of ten years for Partain the week before, and said that he would

explain why Meyer’s case deserved at least ten years. 

The prosecutor then stated that he had described “GigaTribe” software for the

court during Partain’s sentencing, and asserted that use of GigaTribe involves

knowing actual distribution of child pornography from one person to another, not

merely “passive distribution where you allow somebody access to your computer and

you don’t know whether anything’s been taken or not.” Counsel for the government

also reported that he was disappointed with the probation office’s sentencing

recommendation for Partain. The prosecutor then listed “things that separate [Meyer]

from other defendants such as Mr. Partain,” including violations of pretrial release that

resulted in detention and a criminal record. Meyer’s counsel, during his argument,

stated that he was “at a huge disadvantage” because he did not see the sentencing in

the Partain case, and complained that it was unfair for the government to cite that case.

1

The Honorable Lyle E. Strom, United States District Judge for the District of

Nebraska. 

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When imposing sentence, the district court referred twice to Partain’s case. The

court observed that Meyer’s case was “pretty much like last week except for a couple

of factors that I feel are somewhat different.” The court later explained that “last week

Mr. Partain — I sentenced him to 84 months and had the plea for five years.” Turning

to Meyer’s case, the court opined that the minimum statutory term of five years’

imprisonment was not satisfactory.

Meyer did not object to the district court’s statement of reasons or complain that

the court impermissibly considered information to which Meyer lacked access. We

therefore review Meyer’s challenge on appeal for plain error, and we see no obvious

violation of Rule 32. 

A defendant has a “basic right to be apprised of information on which the court

will rest its decision,” United States v. Foster, 575 F.3d 861, 863 (8th Cir. 2009), and

it was plain error in United States v. Lovelace, 565 F.3d 1080 (8th Cir. 2009), for a

judge to rely on personal knowledge of a defendant’s criminal history gleaned from

the judge’s former service as a prosecutor. Id. at 1091-92. Here, however, the record

does not show that the district court relied on extra-record information to select an

appropriate sentence for Meyer. The court did mention the sentence imposed in the

Partain case and observed that a couple factors differentiated Meyer’s case from

Partain’s. But in fixing a sentence for Meyer, the court said that it based its decision

on the factors set forth in § 3553(a). 

The court found it “incredible” that Meyer said he did not view the children

depicted in pornographic videos as victims: “[T]o look at young children being

treated the way they are in those pictures and you don’t think they’re a victim . . . . 

I don’t know where your mind is, frankly.” The court expressed concern that the

sentencing guidelines “are somewhat irrational,” but also reasoned that using child

pornography was “pretty much near” the “most disgusting . . . course that a person can

take.” The court apparently viewed Meyer’s attempt to rebuild a stash of videos after

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the first batch was destroyed as an aggravating factor. The court ultimately varied

downward from the advisory guideline range of 210 to 240 months’ imprisonment and

sentenced Meyer to 120 months. The record does not show plainly that the court

relied on anything the prosecutor said about Partain’s case, and Meyer failed to object

so that the court could clarify any ambiguity. In these circumstances, there is no plain

error that warrants relief.

Meyer also contends that the district court failed adequately to consider

documents that he submitted to illustrate his “difficult background, psychological

makeup, and rehabilitation efforts.” Meyer sent a six-page letter, a fourteen-page

psychological assessment, and seventeen pages of “certificates and commendations”

related to his rehabilitation efforts to the district court by e-mail. But the e-mailed

materials apparently never reached the judge, and Meyer provided the court with the

documents shortly before the sentencing hearing started.

Meyer did not object to the district court’s alleged shortcoming, so we review

for plain error. Meyer’s brief on appeal acknowledges that the court delayed the

hearing briefly to review the materials, and Meyer had an opportunity to argue from

those documents during the hearing. We have no reason to believe that the court

ignored pertinent information. We note that in addition to the documents submitted

at the hearing, the presentence report also contained detailed information regarding

Meyer’s background, a summary of his efforts at rehabilitation, and another letter

written by Meyer explaining his “sexual addiction” and his understanding of the harm

caused by his actions.

Meyer’s third claim of procedural error is that the district court failed

adequately to explain the chosen sentence. The court’s explanation was succinct, but

Meyer did not object to its adequacy, and we review under the plain-error standard. 

The court thought the minimum advisory guideline sentence of 210 months was too

severe, but that the statutory minimum term of sixty months was insufficient. The

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presentence report and sentencing recommendation prepared by the probation office

included extensive information bearing on the sentencing factors set forth in

§ 3553(a), and the court confirmed that it had considered those criteria. The law

leaves a determination about appropriate brevity or length of discussion largely to the

professional judgment of the district court. Rita v. United States, 551 U.S. 338, 356

(2007). Here, where the district court opted to vary downward substantially from the

term recommended by the Sentencing Commission, and where Meyer did not seek

further elaboration about any particular point, we conclude that there was no plain

error warranting relief.

Finally, Meyer argues that his sentence is substantively unreasonable. We

review the reasonableness of a sentence for abuse of discretion. Gall v. United States,

552 U.S. 38, 51 (2007). That the court sentenced Meyer below the advisory range

militates strongly in favor of reasonableness, see United States v. Moore, 581 F.3d

681, 684 (8th Cir. 2009) (per curiam), and we believe it was reasonable for the court

to select a term of 120 months’ imprisonment in light of Meyer’s offense conduct, his

history and characteristics, and the need for the sentence to afford adequate

deterrence. 

The judgment of the district court is affirmed. 

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