## United States Court of Appeals
**For the Eighth Circuit**

___________________________
No. 22

- 1448

___________________________

United States of America

Plaintiff

- Appellee

v.

Ryan McDaniel

Defendant

- Appellant

____________ Appeal from United States District Court for the Eastern District of Missouri

- St. Louis

____________

Submitted: December 15, 2022 Filed: February 10, 2023

____________ Before SMITH, Chief Judg e, GRUENDER and STRAS, Circuit Judges.

____________
GRUENDER, Circuit Judge.

Ryan McDaniel pleaded guilty to carjacking and brandishing

- a

- firearm charges and received a 179

- month sentence. He now argues that the district court 1

1 The Honorable Stephen R. Clark, then United States District Judge for the Eastern District of Missouri , now Chief Judge

.- 2

- committed procedural and substantive e rr ors in determining his sentence

. We
affirm.

I.

McDaniel carjacked at gunpoint a Domino’s delivery driver in St. Louis,
Missouri. Police officers apprehend ed McDaniel after an extended high

- speed chase that traversed multiple interstate highways and residential neighborhoods in St. Louis City and County. At the time of his arrest, McDaniel was on parole for a
second

- degree robbery conviction.

McDaniel ple a ded guilty to carjacking , 18 U.S.C. § 2119

, and brandishing a firearm

, 18 U.S

. C. § 924 (c)(1)(A)(ii )

. While awaitin g sentencing , McDaniel
committed multiple instances of violent conduct at the Jefferson County, Missouri jail

. He attempted to strike the jail nurse , twice charged at correctional officers, and engaged in a scuffle that resulted in a sheriff’s deputy breaking an ankle. McDaniel lost credit for acceptance of responsibility as a result of these and other incidents.
See U.S.S.G. § 3E1.1. McDaniel and the Government then jointly recommend ed a 53

- month sentence for the carjacking charge to be served consecutive ly with the 84

- month statutory minimum s entence for brandishing

, § 924(c)(1)(A)(ii)

, for a total

sentence of 137 months

.

T he district court declined to accept the parties’ recommended sentence . In determining McDaniel’s sentence, the district court began by considering the advisory s entencing g uidelines

, calcul at ing a total offense level of 25 and a criminal

history category of IV

. Factoring in the 84

- month statutory minimum, that yielded a guidelines range of 168 to 189 months

. The district court then weighed the 18 U.S.C. § 3553(a) factors , discussing aggravating a nd mitigating factors

.

Towards the end of the § 3553(a) discussion, the district court made remarks that are at the heart of McDaniel’s appeal. Referencing data available from the United States Sentencing Commission’s Judiciary Sentencing Information ( “ JSIN ” )- 3

- tool

, the district court said that twenty

- nine offenders in the database w ho committed
a similar offense and had the same guidelines offense level and criminal

- history category as McDaniel received a me dian sentence of 180 months and a mean sentence of 181 months. McDaniel’s counsel interjected and ask ed whether the district court knew how many offenders in that dataset had received an 84

- month mandatory minimum sentence as part of their overall sentence

. 2 The district court responde d as follows:

Yes. All of them. The data is on the 29 offenders whose primary guideline was 2B3.1 [the guideline applicable to robbery offenses] and who were convicted of at least one count of 18, United States Code, Section 924(c) with a final offense level of 25 and a criminal history category of four.

The district court then offered a brief rationale for considering the JSIN data:

So it’s information I consider. It’s a data point. It’s not dispositive

. Just like the guidelines, it is i nformation that is

— I do take into account

an d consider it as one of the factors in determining and fashioning a sentence. And in considering avoiding unwarranted sentencing disparities among defendants on a nationwide basis not on a local basis. That’s w hat the guidelines and the Supreme Court require.

The district court then formally denied what it referred to as “the joint recommendation and joint motion for a downward variance” and sentenced
McDaniel to 179 months ’ imprisonment

.

McDaniel appeal s his sentence , alleging that the district court committed procedural error and that his sentence is substantively unreasonable

.

2 Under § 924(c), offenders may be subject to 60

- month, 84

- month, or 120

- month statutory minimums depending on whether a firearm is possessed, brandished, or discharged during a crime of violence. § 924(c)(1)(A)(i)

- (iii). R epeat offenders are subject to a statutory minimum of 300 months. § 924(c)(1)(C)(i).- 4

- II.

McDaniel first arg ues that the district court procedurally erred by referring to
the JSIN statistics. McDaniel claims that he had a right under Rule 32 of the Federal
Rules of Criminal Procedure to have notice of

, and therefore time to review

, all
material information relied o n by the district court at sentencing. Moreover,

a ccording to McDaniel, the district court erroneous ly interpret ed the JSIN data

. See United States v. Wright

, 799 F.2d 423, 426 (8th Cir. 1986) (“[S]entences based upon
material misinformation or erroneous assumptions violate due process

. ” ) ; United
States v. Feemster , 572 F.3d 455, 46 1 (8th Cir. 2009) (en banc) (explaining that a district court procedurally errs by “selecting a sentence based on clearly erroneous facts”).

A.

We begin by addressing McDaniel’s claim that the district court was obligated to disclose its intent to rely on the JSIN statistic s . On its face, the disclosure requirement in Rule 32 only applies to the probation officer’s presentence investigation repor t. See Fed. R. Crim

. P. 32(e)(2). However, in United States v.
Lovelace , we stated that “a district court’s reliance at sentencing on material
information not disclosed in advance to a defendant violates the Rule 32 process.” 565 F.3d 1080, 1092 (8th Ci r. 2009) (finding that a district court’s reliance on its personal and undisclosed knowledge of victim impact violated Rule 32). According to McDaniel, the district used the JSIN data in a material way when determining his

sentenc e and therefore should ha ve disclose d it in advance of sentencing

.

McDaniel did not object to t he district court’s failure to disclose in advance of sentencing its intent to rely on the JSIN data . Nevertheless, McDaniel argues that he preserved de novo review because he could not have had the opportunity to formulate an objection to the JSIN data without knowing about its use in advance.
See Fed R. Crim. P. 51(b). Given these circumstances, McDaniel claims that we should treat his counsel’s question about the JSIN dataset’s c omposition as- 5

- informing the district court of his claim of error. We disagree

. McDaniel’s counsel need not have studied the JSIN data prior to the sentencing hearing to have realized
that the district court had not disclosed the JSIN data . We therefore review for plain

error. See Fed R. Crim. P. 5 2 (b) ; Greer v. United States , 588 U.S.

--- , 141 S.Ct. 2090, 2096 (2021).

Even assuming that McDaniel could show the district court erred by not disclosing its intent to rely on JSIN data, this error would not be plain. An error is plain only if, at the time of appellate review, the erroneous nature of the trial court’s
decision is obvious. Henderson v. United States , 568 U.S. 266, 273

- 74 (2013).
Lovelace and caselaw from other circuits establish that a district court cannot rely

on certain kinds of undisclosed information, especially private information about the
defendant’s crime and its impact on victims. See United States v. Hayes, 171 F.3d 389, 392 (6th Cir. 1999) (holding that a district court’s reliance on confidential
victim

- impact letters violates Rule 32). However, we have not held that the Lovelace
disclosure rule extends broadl y to public information that is not specific to the
defendant. Indeed , we rejected a challenge to a district court’s use of undisclosed general knowledge about a state’s prison system in United States v. Becker

, explaining that a district court’s personal knowledge of a defendant’s criminal conduct and its impact on victims “differs substantially from general knowledge about the prison system.” 636 F.3d 402, 406

- 07 (8th Cir. 2011). Therefore, it is not plainly the case at the time of our review that the d istrict court was obliged to
disclose in advance its intent to rely on publicly available JSIN data.

Thus , the district court did not commit plain error by relying on the undisclosed JSIN data. We therefore reject McDaniel’s argument that the district

c ourt procedurally erred by failing to disclose the JSIN data in advance of sentencing

.- 6

- B.

We next turn to McDaniel’s claim that the district court relied on an erroneous interpretation of the JSIN data in determining its sentence

. McDaniel argues that the
district court mistakenly understood the JSIN dataset as only containing offenders
with an offense carrying an 84

- month minimum under § 924(c) as part of their
overall sentence. McDaniel’s briefing d iligently reviews the underlying twenty

- nine
cases in the JSIN dataset relied on by the district court

. In only twenty of those cases

was the defendant subject to a n 84

- month § 924(c) minimum. For these twenty defendants, the average sentence was 172 mon ths and the median 1 68 months. In the other cases, t wo of the other offenders had a 60

- month statutory minimum, six
had a 120

- month statutory minimum, and one had a 300

- month statutory minimum.

T h e district court therefore did not understand the composit ion of the dataset

,

a ccording to McDaniel

. McDaniel received a 179

- month sentence, and the district

court stated that the JSIN median was 180 months . McDaniel thus argues that the JSIN data shaped the district court’s sentencing determination and that he would have received a lower sentence if the district court relied on a dataset exclusively containing offenders with a n 84

- month § 924(c) minimum.

The Government does not d ispute McDaniel’s conclusion that offenders in the
dataset with a n 84

- month § 924(c) minimum received lower mean and median

sentence s than the figures announced by the district court. Instead, the Government argues that the district court understood the v ariance in § 924(c) statutory minimums
within the dataset but misunderstood McDaniel’s question about the dataset ’s composition

. The Government emphasizes that after the district court answered

“ yes” to McDaniel’s counsel’s question about the § 924(c) minimum, the district court proceeded to explain that the offenders “were convicted of at least one count of 18, United States Code, Section 924(c)

. ” According to the Government , the district court thereby indicated its awareness that the JSIN data base included
offenders with statutory minimums of lengths other than 84 months.- 7

- We assume without deciding that the district court incorrectly interpre ted the
JSIN data. However, we conclude that a remand for resentencing is unnecessary
because the d istrict court’s alleged error did not prejudice McDaniel

. A procedural
error is harmless when it “ did not substantially influence the outcome of the sentencing proceeding.” United States v. Woods , 670 F.3d 883, 886 (8th Cir. 2012).

“ A court’s determined focus on other matters when fixing a sentence can convince us in the appropriate case that an error didn’t affect the court’s sentencing
conclusion.” United States v. Shell , 23 F.4th 803, 806 (8t h Cir. 2022).

In Shell , we found a district court’s invocation of allegedly errant statistics a t sentencing to be harmless. Id. at 805

- 06. The defendant in that case, a career offender under § 924(c), also sought a below

- g uidelines sentence

. T he district court
said that it “looked at the United States Sentencing Commission data for career
offenders because [ it ] wasn ’ t just super familiar with sentencing statistics for 924(c)
career offender s.” Id . at 805. I t interpreted that data as showing that a majority of § 924(c) career offender s nationwide do not receive below

- g uidelines variances. Id

. at 805. Assuming the Shell district court incorrectly interpreted the dat a , w e nevertheless declined to remand for resentencing because the sentencing tra nscript showed that the court “focused extensively on other matters in selecting an appropriate sentence

. ” Id . at 805

- 06. These other matters were “the nature and seriousness of Shell’s offenses, his multiple, dangerous flights from law enforcement, and especially his criminal history.” Id. at 806. Thus, viewing the record in its totality, we found that “the court fixed Shell’s sentence by focusing in a determined way on the aggravating and mitigating circumstances of his case, not on the sentences that other 924(c) career offenders received.” Id.

A review of the sentencing transcript in this case demonstrates that the district

court similarly foc us ed on McDaniel’s offense and other aggravating factors in determining the sentence

. Like the district court in Shell , the district court in this case referenced the disputed data merely for comparative purposes as a “data point

. ”- 8

- Starting with McDanie l’s offenses, the district court described them as “very, very disturbing

, ” emphasizing that during the carjacking McDaniel pointed his
firearm at the victim and threatened to shoot him

. The district court also focused on McDaniel’s high

- speed attempt to evade police apprehension

, not ing that McDaniel “imperiled many people on the interstates” ; “went through residential neighborhoods, disobey[ing] several traffic stops, traffic lights and stop signs while creating a substantial risk to the publi c” ; and was apprehended only after law enforcement deployed spike strips at risk to their own safety.

T he district court then considered McDaniel’s criminal history, stat ing that McDaniel “has a significant history that causes me grave concern” and dis cuss ing McDaniel’s past offenses at length

. The court not ed a recidivist pattern by comparing his present crime with his past crimes involv ing stealing, firearms, and highly unsafe driving. The court also emphasized McDaniel’s post

- arrest
misconduct , noting the deputy’s broken ankle, McDaniel ’s attempt to strike a jail

nurse , and two other times when McDaniel charged at correctional officers

. The
district court then reviewed applicable mitigating factors, such as family history

, substance abuse, and mental

- health issues

. The court, however, concluded that McDaniel “made terrible choices despite all of the warnings and opportunities to change his behavior” and “continues to pose serious and substantial threats to society.”

Only after this extended discussion of McDaniel’s crime s and aggravating
circumstances did the district court discuss the JSIN data. Shortly after th at exchange

, the district court summarized its analysis by again focusing on defendant

specific matters

. The district court highlighted the aggravating circumstances and emphasized that it grounded its decision in the § 3553(a) factors

. It stated :

I have arrived at a sentence that’s sufficient but not greater than necessary to comply with the purposes of 18, United States Code, Section 3553(a). And notwithstanding the objections in this case, I would impose the same sentence based on my consideration of the- 9

- 3553(a) factors and all the facts and circumstances o f this case as I have related them here today.

I deny the joint

-- what is essentially the joint recommendation and joint motion for a downward variance for all the reasons I have stated. It does not adequately reflect the nature and characteristics of t he offense; the history and characteristics of the defendant; the seriousness of the danger created by the defendant ’ s offense here, including his extended high

- speed fleeing and endangering other people; the pattern of escalating conduct; the victim impac t which there is a trauma experienced by carjacking victims that I think is well

- known.

And I ’ ve considered the sentences of similarly

- situated defendants and I ’ ve considered all of the arguments that have been presented here very ably by counsel today.

The district court then concluded by announcing that it had rejected the parties’ joint

motion for a downward variance and by impos ing a 179

- month sentence.

The district court’s explanation for selecting the 179

- month sentence thus “puts its statistical observation in the appropriate context.” See Shell , 23 F.4th at
806. T he district court maintained a determined focus on the aggravating
circumstances in McDaniel’s case and imposed McDaniel’s sentence based on its consideration of the § 3553 (a) factors. Relatedly , the district court stated that the sentencing data was “not dispositive,” or, in other words, not a deciding factor in its sentencing determination. See United States v. Marin , 31 F.4th 1049, 1057 (8th Cir. 2022) (finding any erro r made by a district court in calculating the guidelines range to be harmless because the district court extensively considered the § 3553(a) factors and explained that the guidelines were “an important, though not in any way controlling, factor to be cons idered.”).

Moreover, t he district court repeatedly referenced the applicable sentencing guidelines range of 168 to 189 months , including when discussing national consistency, and noted that the parties request ed a downward variance of 3 1 to 52
months. The guidelines range thu s provided the district court with an independent- 10

- source of information , aside from the JSIN data, for its con side rations of national consistency

. Cf. United States v. Wise , 17 F.4th 785, 7 88

- 89 (8th Cir. 2021) ( explaining that a district court’s erroneous statement at sentencing that heroin sold by the defendant contained fentanyl was harmless because the court relied on other, independent evidence which demonstrated that the defendant was aware of heroin’s dangerous nature). Lastly, we note that the 179

- month sentence McDaniel received was also the approximate mid

- point of th e 168 to 189 month guidelines range. Th is further rebuts McDaniel’s contention that the length of the sentence he r eceived
demonstrat es that he was prejudice d by the district court’s improper interpretation
of the JSIN data

.

In sum, we find that any error made by the district court in interpreting the JSIN statistics “did not substantially influence the outcome of the sentencing proceeding” because the district court focused on McDaniel, not the data. See
Woods , 670 F.3d at 886. If the district court erred in this case, it s error was harmless

.

III

.

We next turn to McDaniel’s claim that the district court substantively erred by imposing an unreasonable sentence

. We review the substantive reasonableness
of a district court’s sentence for abuse of discretion. United States v. Godfrey , 863 F.3d 1088, 109 9 (8th Cir. 20 17 ). Sentences within the guidelin es range are presumptively reasonable. United States v. Jones , 990 F.3d 1141, 1144 (8th Cir.
2021 ).

McDaniel argues that the district court substantively erred b y excessively
rel ying on nationwide sentencing data and by giving insignificant weight to mitigating factors. See § 3553(a)

. We disagree. As described above, the sentencing transcript indicates that the district court only briefly considered the JSIN data in a

non

- dispositive manner

. In deed , t he district court prima rily relied on factors specific to McDaniel, most importantly the severity of his crimes and his extensive criminal- 11

- history. Therefore, the record does not support McDaniel’s suggestion that the district court excessively relied on the JSIN data in determ ining a sentence.

McDaniel’s claim that the district court gave insignificant weight to mitigating factors also lacks support. The district court discus s ed mitigating factors

, including mental health, family issues, and substance abuse. However, it concluded
that they should carry little weight because McDaniel had failed to take advantage of multiple opportunities to turn his life around and remained a threat to society

. In sum, the district court did not abuse its discretion by giving mitigating factors short
shrift ; rather , it persuasive ly explained why aggravating factors should carry more weight. See Feemster , 572 F.3d at 46 1

- 62 (explaining that we must give “due deference” to a district court’s weighing of the § 3553(a) factors).

McDaniel’s 179

- month

, within

- guidelines sentence reflect s the district court’s careful weighing of the § 3553(a) factors . As the district court did not fail to consider or properly weigh any relevant factor or otherwise commit a clear error of judgment,

we conclude that McDaniel’s s entence is not substantively unreasonable

.

IV.

For the for e going reasons, we affirm.

STRAS, Circuit Judge, Dissenting.

The district court said what it said during the sentencing hearing, and what it said was wrong. In answering a question about a search it ran using the Judiciary Sentencing Information tool, which aggregates data on offenders sentenced in the federal syst em, it declared that all 29 offenders in the dataset had an 84

- month
statutory

- minimum sentence. That was mistaken. Some had 60

- month minimum sentences, several more had 120

- month minimums, and one topped out at a 300

- month minimum.- 12

- The district court also stated that the data was “information [it] consider[ed,]

. . . a data point

. . . [to] avoid[] unwarranted sentencing disparities.” Having all but admitted that the search influenced its decision to impose a 179

- month sentence, I would remand for res entencing. See 18 U.S.C. § 3553(a)(6) (requiring district courts to consider “unwarranted sentenc[ing] disparities among defendants”). In the language of the plain

- error standard, it made a “clear” or “obvious” error that, by the court’s own words, affec ted McDaniel’s substantial rights. United States v. Olano , 507 U.S. 725, 734 (1993); cf. United States v. Shell

, 23 F.4th 803, 807 (8th Cir. 2022) (Stras, J., concurring in the judgment) (agreeing that the sentence should stand on plain

- error review becau se no one could identify “the source, time frame, or dataset used” at sentencing).

______________________________