United States v. Christian Hansen ( 2020 )

United States Court of Appeals
For the Eighth Circuit
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No. 18-3122
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Christian Hansen
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Filed: January 14, 2020
[Published]
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Before LOKEN, COLLOTON, and KOBES, Circuit Judges.
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PER CURIAM.
In United States v. Hansen, 944 F.3d 718 (8th Cir. 2019), we affirmed the
judgment sentencing Christian Hansen to 600 months imprisonment after a jury
convicted him of sexual exploitation of a minor, exploiting a minor while being
required to register as a sex offender, two counts of distributing and receiving child
pornography, and five counts of possessing child pornography. On appeal, Hansen
primarily argued the district court erred in enhancing his sentence on Count One, the
child exploitation offense, because a prior Nebraska conviction did not “relat[e] to the
possession of child pornography” within the meaning of 18 U.S.C. § 2251(e). We
declined to address that question, concluding any error was harmless: at sentencing,
the district court expressly stated that the § 2251(e) enhancement “is not going to
affect the ultimate sentence I impose,” determined that the advisory guidelines range
for the nine counts under the multiple-count consecutive sentencing provisions of
USSG § 5G1.2(d) was 2,880 months, varied downward from that maximum, and
found that “a sentence of 600 months is sufficient but not greater than necessary.”
Hansen petitions for panel rehearing. He argues that we should grant rehearing
because “the crux of the panel’s harmless error analysis -- that ‘the highest statutory
maximum would still be 40 years’ -- overlooks a significant and highly relevant fact
that defense counsel failed to appropriately bring to the panel’s attention: that Counts
Three through Nine are infected by precisely the same legal infirmity that Hansen
asserts with respect to Count One.” Therefore, he posits, “[i]f the panel declines
rehearing, Hansen will be required to pursue relief under 28 U.S.C. § 2255.”
We deny the petition for rehearing. First, “the crux” of our harmless error
analysis was not that the highest statutory maximum was 40 years if the maximum on
Count One was reduced from 50 to 30 years. The district court properly determined
that the advisory range under USSG § 5G1.2(d) greatly exceeded the 600 month
sentence it imposed. Any error was harmless, we concluded, because that remained
true even if the statutory maximum for Count One was reduced by eliminating the
§ 2251(e) enhancement. In reaching that conclusion, we took into account that the
statutory maximum might also need to be reduced for Counts 3 and 4 from 40 years
to 20. We did not include that in our opinion because there was no need to do so.
Any enhancement issue regarding Counts Three and Four had been forfeited by
Hansen in the district court and on appeal. Even if considered, it would not materially
affect the § 5G1.2(d) analysis because the revised guidelines maximum if the
enhancement did not apply to these counts would be 2,160 months, more than three
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times the sentence imposed. And the record provided no reason to believe that this
additional reduction would have affected the district court’s decision that the
enhancement “is not going to affect the ultimate sentence I impose.” Because Hansen
forfeited any objection on Counts 3 and 4, the district court had no reason to state
specifically that the statutory maximum on those counts did not affect the ultimate
sentence. Thus, the issue first raised in the petition for rehearing does not warrant
rehearing and would afford no basis for § 2255 relief.
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