United States v. Joshua Brown ( 2023 )

United States Court of Appeals
For the Eighth Circuit
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No. 22-2320
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United States of America
Plaintiff - Appellee
v.
Joshua Brown
Defendant - Appellant
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Appeal from United States District Court
for the Western District of Arkansas - Fayetteville
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Submitted: April 10, 2023
Filed: July 13, 2023
[Unpublished]
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Before LOKEN, SHEPHERD, and KELLY, Circuit Judges.
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PER CURIAM.
Joshua Brown pled guilty to two counts of production of child pornography
pursuant to a written plea agreement. The district court calculated the United States
Sentencing Guidelines (USSG) base offense level for each count as 32. Several
enhancements applied, including enhancements because the videos depicted a minor
and involved sexual activity with a minor. The district court concluded that the
combined offense level on both counts was 43 and calculated Brown’s criminal
history as category I, resulting in an advisory Guidelines sentence of life
imprisonment followed by a term of supervised release of five years to life.
However, the statutory maximum term of imprisonment for each count was 360
months, resulting in an advisory Guidelines sentence of 720 months in total. After
discussing the 18 U.S.C. § 3553(a) factors and hearing argument of counsel and
allocution from Brown, the court sentenced Brown to a term of imprisonment of 360
months on each count but with 240 months of the sentence on Count Two to run
consecutively with the rest running concurrently, for a total effective term of 600
months’ imprisonment to be followed by 25 years of supervised release. The district
court also imposed several special conditions of supervised release, including
participation in a sex-offense-specific treatment program (Special Condition 6) and
submission to periodic polygraph testing (Special Condition 7). Brown objected to
Special Condition 7, which the district court overruled. Brown appeals Special
Condition 7 and the substantive reasonableness of his sentence. Having jurisdiction
under 28 U.S.C. § 1291, we affirm in part and remand.
In this appeal, Brown alleges that the terms of Special Condition 7 as
announced by the district court in open court conflicts with the terms of Special
Condition 7 as set forth in the written judgment. At sentencing, the district court
stated:
Number seven, the defendant shall be required to submit to periodic
polygraph testing at the discretion of the United States Probation Office
as a means of participating in treatment programming.
R. Doc. 60, at 64 (emphasis added). The written judgment states:
7. The defendant shall be required to submit to periodic polygraph
testing at the discretion of the probation office as a means to ensure
that he is in compliance with the requirements of his supervision or
treatment program.
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R. Doc. 50, at 5 (emphasis added). Brown asks us to strike the terms in the judgment
that are broader than the district court’s oral pronouncement. The United States
argues that there is no conflict.
“‘The oral pronouncement by the sentencing court is the judgment of the
court,’ and, ‘[t]o the extent there is any conflict between the district court’s oral
announcement of the special condition at sentencing and its written judgment, the
oral sentence controls.’” United States v. Mays, 993 F.3d 607, 622 (8th Cir. 2021)
(alteration in original) (citations omitted). Nevertheless, “if a district court’s written
judgment is ‘consistent’ with its discernible intent in the oral pronouncement and
simply ‘clarified’ an ‘imprecisely’ pronounced special condition, there is no conflict
and we may treat the written judgment as operative.” Id. (citation omitted).
We conclude that the terms of Special Condition 7 as set forth in the written
judgment conflict with the terms as orally announced by the district court at
sentencing. At sentencing, the district court announced the condition of periodic
polygraph testing only “as a means of participating in treatment programming.”
Accordingly, it appears that the “discernible intent” of the district court at sentencing
was that Special Condition 7 was narrowly tailored to Brown’s treatment program.
Id. The written judgment, however, is broader, stating that a purpose of the
requirement of periodic polygraph testing is to “ensure that [Brown] compli[es] with
the requirements of his supervision,” and is not limited to ensuring that Brown
complies with his treatment program. “When such conflicts exist, the portion of the
written judgment ‘that is broader than the oral version is void.’” Id. (citation
omitted). In such a circumstance, the judgment must be remanded to the district
court with instructions to “harmonize the written condition with the oral sentence.”
United States v. James, 792 F.3d 962, 972 (8th Cir. 2015). Such a remand is
appropriate in this case.
Next, Brown argues that his sentence is substantively unreasonable. We
review the substantive reasonableness of a sentence for an abuse of discretion.
United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc). “A district
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court abuses its discretion and imposes an unreasonable sentence when it fails to
consider a relevant and significant factor, gives significant weight to an irrelevant or
improper factor, or considers the appropriate factors but commits a clear error of
judgment in weighing those factors.” United States v. McDaniels, 19 F.4th 1065,
1067 (8th Cir. 2021) (citation omitted). In this case, the district court specifically
stated that it was considering the 18 U.S.C. § 3553(a) factors and sentenced Brown
to a total of 600 months’ imprisonment, below the Guidelines sentence of 720
months. Accordingly, the sentence is afforded a presumption of reasonableness and
it is “nearly inconceivable” that it constitutes an abuse of discretion. United States
v. Bevins, 848 F.3d 835, 841 (8th Cir. 2017). Brown asserts that the district court
did not give adequate weight to certain mitigating factors including his pending state
charges, that he did not distribute the images he produced, and his lack of a criminal
record. However, all of these facts were set forth in the Presentence Report and were
argued by Brown’s attorney at sentencing. Thus, we presume that the district court
considered these factors. United States v. Keating, 579 F.3d 891, 893 (8th Cir.
2009). Further, the district court “need not specifically respond to every argument
made by the defendant.” United States v. Ballard, 872 F.3d 883, 885 (8th Cir. 2017)
(citation omitted).
Brown also asserts that the sentence is greater than necessary and creates a
disparity, pointing to a similar case in which the defendant received the same
sentence under, allegedly, more aggravating circumstances. However, the district
court “addressed and distinguished” that case at sentencing, United States v.
Williams, 934 F.3d 804, 809 (8th Cir. 2019), while also recognizing the difficulties
of crafting a proportionate sentence.
“Where the district court in imposing a sentence makes ‘an individualized
assessment based on the facts presented,’ addressing the defendant’s proffered
information in its consideration of the § 3553(a) factors, such sentence is not
unreasonable.” Id. (citation omitted). We find no abuse of discretion in the sentence
imposed in this case.
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Therefore, we remand Special Condition 7 to the district court with
instructions to harmonize the written condition with the oral pronouncement of the
condition. The judgment of the district court is otherwise affirmed.
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