United States v. Jacob Watters ( 2018 )


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  •                   United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 17-1271
    ___________________________
    United States of America
    lllllllllllllllllllll Plaintiff - Appellee
    v.
    Jacob Scott Watters
    lllllllllllllllllllll Defendant - Appellant
    ____________
    Appeal from United States District Court
    for the Southern District of Iowa - Davenport
    ____________
    Submitted: December 15, 2017
    Filed: May 2, 2018
    [Unpublished]
    ____________
    Before WOLLMAN, LOKEN, and MURPHY, Circuit Judges.
    ____________
    PER CURIAM.
    In 2016 Jacob Watters pled guilty to receipt of child pornography under 
    18 U.S.C. § 2252
    (a)(2). At sentencing, the district court1 determined that Watters' prior
    1
    The Honorable John A. Jarvey, United States District Judge for the Southern
    District of Iowa.
    Iowa conviction for Lascivious Acts with a Child qualified as a predicate offense for
    enhanced sentencing under 
    18 U.S.C. § 2252
    (b)(1) and sentenced him to 240 months
    imprisonment. Watters appeals his sentence. We affirm.
    I.
    In 2013 Watters pled guilty to one count of Lascivious Acts with a Child, IOWA
    CODE § 709.8. Watters, nineteen at the time, had carried on a sexual relationship with
    A.L., a twelve year old girl. In 2014 Iowa police learned that Watters had exchanged
    sexually explicit photos with a fifteen-year-old California girl. Officers searched his
    home and discovered multiple electronic devices containing a total of about 400
    sexually explicit photos of six minor girls, including A.L. and T.W., who were
    seventeen when the photos were taken. The photos of A.L. predated Watters' 2013
    conviction, and he procured photos of the four other girls after extensive online
    communications in 2014 and early 2015.
    In February 2015 Watters pled guilty to receipt of child pornography, 
    18 U.S.C. § 2252
    (a)(2). Section 2252(b)(1) mandates a 5-20 year sentence for anyone who
    violates § 2252(a)(2), but increases the mandatory sentence to 15-40 years when the
    defendant has a prior conviction for certain sexual offenses. At sentencing, the
    district court found that Watters' 2013 Iowa conviction (lascivious acts with a child)
    qualified as a predicate offense under § 2252(b)(1). He thus had a mandatory
    minimum of 15 years and a maximum sentence of 40 years.
    The district court determined that Watters' guideline offense level was 36
    (including a five level "relevant conduct" enhancement of his base offense level under
    U.S.S.G. § 2G2.1(d)(1)). The district court calculated a guideline range of 210-262
    months and sentenced Watters to 240 months imprisonment.
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    II.
    Watters first argues the district court improperly applied the relevant conduct
    enhancement and thus his total offense level should have been 35 rather than 36,
    resulting in a guideline range of 188–235 months. "We review the district court's
    interpretation of the guidelines de novo and the court's relevant conduct
    determination for clear error." United States v. Allebach, 
    526 F.3d 385
    , 388 (8th Cir.
    2008) (citation omitted).
    Section 2G2.1(d)(1) states: "If the offense involved the exploitation of more
    than one minor, Chapter Three, part D (Multiple Counts) shall be applied."
    Application Note 7 under § 2G2.1 clarifies that "if the relevant conduct of an offense
    of conviction includes more than one minor being exploited, whether specifically
    cited in the count of conviction or not, each such minor shall be treated as if
    contained in a separate count of conviction." Under §3D1.4, a defendant's offense
    level may be enhanced by 5 units if he has more than 5 incidents of relevant conduct
    and 4 units for between 3.5 to 5 incidents of relevant conduct.
    "Relevant conduct" consists of all acts and omissions committed by the
    defendant "that occurred during the commission of the offense of conviction, in
    preparation for that offense, or in the course of attempting to avoid detection or
    responsibility for that offense." § 1B1.3(a)(1)(A). Relevant conduct is a "broad
    concept" that "includes activities that occurred before the date identified by the
    indictment as the starting date of the offense." United States v. Burman, 
    666 F.3d 1113
    , 1119 (8th Cir. 2012) (citation omitted). "Conduct underlying a prior conviction
    is not relevant to the instant offense if the former conviction was a 'severable, distinct
    offense' from the latter." United States v. Weiland, 
    284 F.3d 878
    , 881 (8th Cir. 2002)
    (citation omitted).
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    The district court determined that Watters had six incidents of relevant conduct
    and thus enhanced his offense level five units. Watters argues the district court
    should have only enhanced his offense level four units because his conduct toward
    victims T.W. and A.L. is irrelevant. Watters procured sexually explicit images of
    T.W. in person when the two were seventeen and in a romantic relationship. He
    argues that his conduct toward her was distinct from his 2014 behavior. Additionally,
    Watters argues that his conduct toward A.L. is irrelevant because it occurred prior to
    his 2014 offense and the photos were taken in person rather than online. Watters
    continued to possess the images of T.W. and A.L. until 2014, however, so his conduct
    "occurred during the commission of the offense of conviction." § 1B1.3(a)(1)(A).
    Thus, the district court did not clearly err when it made its relevant conduct findings
    under § 1B1.3(a)(1)(A) and applied that enhancement.
    III.
    Watters also argues the district court erred in determining his prior conviction
    for Lascivious Acts with a Child, IOWA CODE § 709.8, qualifies as a predicate offense
    under 
    18 U.S.C. § 2252
    (b)(1). Whether a defendant's prior conviction qualifies as a
    predicate offense under § 2252(b)(1) is reviewed de novo. United States v. Weis, 
    487 F.3d 1148
    , 1151 (8th Cir. 2007).
    We need not decide whether the district court erred in determining Watters'
    prior conviction qualified as a predicate offense because even if the court erred, the
    error would have been harmless. "When the district court would have imposed the
    same sentence absent an error, such error is harmless." United States v. Jauron, 
    832 F.3d 859
    , 864 (8th Cir. 2016). After sentencing Watters to 240 months, the district
    court stated: "It is the same decision the Court would have reached even if
    [defendant's prior conviction] does not qualify to enhance the mandatory minimum
    or maximum sentence. This sentence was largely driven by, of course, the behavior
    and the Court's belief in the reasonableness of the Guideline range." Watters'
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    sentence also was within the mandatory sentence of 5 to 20 years so that any error in
    the application of the enhancement would be harmless.
    IV.
    Accordingly, the judgment of the district court is affirmed.
    ______________________________
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