United States v. Matthew Buesing ( 2024 )

United States Court of Appeals
For the Eighth Circuit
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No. 23-3750
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United States of America
Plaintiff - Appellee
v.
Matthew Paul Buesing
Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Eastern
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Submitted: September 23, 2024
Filed: October 1, 2024
[Unpublished]
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Before BENTON, ARNOLD, and KOBES, Circuit Judges.
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PER CURIAM.
Matthew Paul Buesing pled guilty to receiving and distributing child
pornography and possession of child pornography in violation of 18 U.S.C.
§ 2252(a)(2) and § 2252(a)(4)(B). The district court1 sentenced him to 120 months
1
The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.
in prison and ten years of supervised release. On release, he violated multiple
conditions of release. At his most recent revocation hearing, the district court
revoked his supervised release, sentencing him to ten months in prison and 60
months of supervised release. He appeals. Having jurisdiction under 28 U.S.C.
§ 1291, this court affirms.
Buesing argues the district court erred in finding he violated conditions of
supervised release by failing to register as a sex offender and associating with a
felon. The district court may revoke a defendant’s supervised release if it finds a
violation by a preponderance of the evidence. United States v. Perkins, 526 F.3d
1107, 1109 (8th Cir. 2008). This court reviews for abuse of discretion. United States
v. Sistrunk, 612 F.3d 988, 991 (8th Cir. 2010).
Buesing’s argument has no merit. At the revocation hearing, Buesing
acknowledged that the government’s proffered facts were accurate.
THE COURT: The Government has proffered facts in a written
document. Have you had the chance to look at that, sir?
THE DEFENDANT: Yes.
THE COURT: And do you acknowledge that those facts are accurate?
THE DEFENDANT: I’m sorry. Just my paranoia is deep.
THE COURT: No. That’s fine.
MR. DUSTHIMER [defense counsel]: By a preponderance of the
evidence standards.
THE COURT: Okay. Do you acknowledge that the Government’s facts
establish by a preponderance of the evidence—that the Government’s
facts put forth in this proffer are accurate by a preponderance of the
evidence?
THE DEFENDANT: Yes.
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He then admitted the facts.
THE COURT: So the first thing I want to talk to you about is that
interaction with a felon that we’ve now noted that as the fifth violation.
Chronologically it comes first in terms of what was brought to the
Court’s attention. You acknowledge that you were having contact with
Mr. VanMeter and knew that he was, in fact, a felon?
THE DEFENDANT: Yes, ma’am.
THE COURT: My understanding is that that contact was ongoing from
the time that you were in the halfway house together; is that right?
THE DEFENDANT: We actually met in prison and then in the halfway
house, yes.
THE COURT: And you continued to maintain—maintain contact with
him?
THE DEFENDANT: Yes, ma’am.
THE COURT: And you knew that maintaining contact or having any
contact with a felon was against your terms and conditions?
THE DEFENDANT: Yes, ma’am.
THE COURT: The next number of violations are in relation to failing
to register as a sex offender. You acknowledge that you are a sex
offender who is required to register?
THE DEFENDANT: Yes, ma’am.
THE COURT: And there are a number of different components of those
registration requirements. You know that.
THE DEFENDANT: Yes.
....
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THE COURT: And do you acknowledge the Court has established a
factual basis by a preponderance of the evidence for the three new law
violations of failure to register as a sex offender and association with a
felon?
MR. DUSTHIMER: Yes.
The district court did not abuse its discretion in revoking his supervised release.
Buesing contends the sentence was substantively unreasonable. This court
reviews for abuse of discretion. United States v. Beckwith, 57 F.4th 630, 632 (8th
Cir. 2023). The district court carefully reviewed the facts of the case and Buesing’s
performance on supervised release. It said:
Last time we were here, there were five violations ranging from
possessing an internet-capable device to viewing adult pornography,
teen pornography, unauthorized contact with a minor, and unauthorized
use of the internet. In that instance, the revocation and imprisonment
range was 3 to 9 months, and the Court imposed a 6-month term.
At that hearing I noted to the defendant that additional violations will
be taken very seriously by the Court, and that was because when
reviewing the original presentence investigation report, the nature of
the violation at that time—the nature of the criminal conduct at that
time and in the items the defendant chose to possess included, as
reflected in paragraph 17 of the presentence investigation report, a
document that was entitled, “How to Molest Your Teenage Daughter,”
a how-to video which was a tutorial on how to molest your teenage
daughter.
....
The violations that exist here and that are present and well documented
in the proffer and acknowledged by the defense are serious because they
demonstrate a continuing unwillingness to comply with the strictures
that are in place for the protection of others.
....
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The Court recognizes and commends the positive strides in terms of
participation in a faith-based environment—faith-based environment,
attending church and attending treatment; however, those positive
strides do not in any way change the requirements of the defendant not
to have contact with his daughter and to not go to his wife’s home
without permission of the probation office so that adequate supervision
can occur.
Buesing disagrees with the weight the district court gave the sentencing factors. But
this is not a basis for reversal. See United States v. Moua, 895 F.3d 556, 560 (8th
Cir. 2018) (“The district court has wide latitude to weigh the § 3553(a) factors in
each case and assign some factors greater weight than others in determining an
appropriate sentence.”). The sentence is not substantively unreasonable.
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The judgment is affirmed.
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