United States v. Hardy Kocher , 932 F.3d 661 ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 18-1410
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Hardy Andrew Kocher
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: February 11, 2019
Filed: July 30, 2019
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Before LOKEN, COLLOTON, and KELLY, Circuit Judges.
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LOKEN, Circuit Judge.
In this appeal of a 24-month supervised release revocation sentence, Hardy
Andrew Kocher argues the sentence is substantively unreasonable and greater than
necessary because the district court1 varied upward based on inappropriate
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The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota.
speculation that Kocher might have committed an uncharged crime, and did not
appropriately consider the relevant 18 U.S.C. § 3553(a) sentencing factors. After
thorough review of the sentencing record, we disagree and therefore affirm.
I.
Kocher pleaded guilty to possession of child pornography in 2007 and was
sentenced in January 2008 to 27 months in prison and 10 years of supervised release.
He began the term of supervised release in January 2010. His conditions of
supervision included participation in sex offender treatment and no computer use or
access to on-line service without prior approval of the Probation Office.
In the next eight years, Kocher frequently violated conditions of his supervised
release. The district court modified the conditions in 2012 and 2013 due to Kocher’s
persistent refusal to attend and participate in sex offender treatment. In March 2014,
Kocher was unsuccessfully discharged from the treatment program; the court ordered
that he be placed in a residential reentry center for 180 days and participate in
location monitoring until he completed sex offender treatment. In December 2015,
Kocher was found in possession of explicit images, contrary to treatment rules, and
an external hard-drive was found at his residence. The court added a special
condition that he “not possess, view, access, or otherwise use child pornography or
any material that is sexually stimulating or sexually oriented deemed to be
inappropriate by [his] Probation Officer in consultation with the treatment provider.”
Throughout this period, Kocher was employed at Kinder Morgan as a terminal
mall operator. In July 2016, the Probation Office approved Kocher’s use of
employer computers and Internet system for employment purposes only. In August
2017, Kocher was terminated after Kinder Morgan discovered that he used its
computer outside scheduled hours to access sexually explicit websites. The next day,
he was discharged from the sex offender treatment program. An FBI forensic exam
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of two computers that Kocher used at work revealed over 200 searches for the word
“teen,” pornographic images of young adults that were not confirmed to be child
pornography, and downloading of images to USB drives that were not recovered.
The Probation Office filed a Third Amended Petition on Supervised Release alleging
Kocher violated three special conditions.
The district court held a revocation hearing on February 16, 2018. At the
outset, Kocher admitted violating two terms of supervised release: “Shall participate
in sex offender treatment,” and “ Shall not possess, view, or access any material that
is sexually stimulating.” The advisory Guidelines provide that these are Grade C
violations. See USSG § 7B1.1(a)(3)(B). As Kocher’s underlying child pornography
offense was a Class C felony and he was in Criminal History Category I, his
maximum revocation sentence was 2 years in prison, see 18 U.S.C. § 3583(e)(3), and
his advisory guidelines sentencing range was 3 to 9 months, see USSG § 7B1.4(a).
Defense counsel urged the court to impose a nine-month sentence, acknowledging the
“aggravated nature” of Kocher’s Grade C violations but emphasizing “that child
pornography was not discovered on any of the submitted computers,” that Kocher’s
criminal history involved no “touching offenses” or physical sexual misconduct, and
that he is a decorated war veteran with a strong work history.
The government urged a 24-month revocation sentence based on Kocher’s
sustained failure to complete sex offender treatment and his accessing pornography
on his employer’s computers. The government questioned whether there was no
evidence Kocher accessed child pornography: “We just don’t know, because we don’t
have access to those [unrecovered] devices.” The district court responded, “That’s
true. But at the same token, I think we have to look at the charge that’s involved
here.” In reply, defense counsel asserted, without objection by the government:
“There’s no dispute between the Government and the Defense that there’s no
evidence of child pornography.” The district court then announced its ruling:
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Well, Mr. Kocher, no means no. And that means no viewing of
pornography. That means when you’re restricted from the internet,
you’re restricted from the internet.
It just is a case that all these years the underlying thing has not
been resolved, but crime is committed. And that’s wrong.
It’s for that reason that the Court is of a mind and does believe
that upward departure is appropriate. And I’m going to grant that
upward departure and sentence you to the custody of the Bureau of
Prisons for a period of 24 months.
II.
The crux of this appeal is Kocher’s contention that the district court’s
statement, “crime is committed,” establishes that the court based its decision to
impose a substantial upward departure or variance on a finding of fact not supported
by the record -- that Kocher committed a “crime,” viewing child pornography, not
merely the supervised release “violation” of viewing adult pornography on his
employer’s computers. The legal principle is sound: “it is a procedural error for a
district court to impose a sentence based on a clearly erroneous fact.” United States
v. Ryser, 883 F.3d 1018, 1020 (8th Cir. 2018). But it does not apply in this case.
First, the assertion that the district court found that Kocher committed the crime
of viewing child pornography is directly contradicted by the record. At the
revocation hearing, when government counsel noted there might have been child
pornography on the unrecovered devices, the district court stated, “we have to look
at the charge that’s involved here.” Both attorneys then agreed, “there’s no evidence
of child pornography.” After this exchange, it defies logic to argue the district court’s
reference to “crime” reflected an unstated finding the court knew the record would
not support. Of course, defense counsel could have asked the court for clarification;
having failed to do so, the argument for an illogical interpretation is forfeited.
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Second, viewed in context, the district court’s statement, “crime is committed,”
either meant “a violation is committed,” referring to the admitted supervised release
violations, or referred to a string of facts well established by the record -- Kocher’s
initial child pornography offense, his persistent refusal to comply with a legal
obligation to participate in and complete sex offender treatment, and his repeated
violations of conditions limiting his access to computers and pornographic websites.
The court was simply explaining why the revocation evidence “support[ed] the view
that a [revocation] sentence higher than the guidelines suggested was necessary to
deter and incapacitate this offender.” United States v. Nelson, 453 F.3d 1004, 1006
(8th Cir. 2006); see United States v. Rodriguez, 668 F. App’x 114, 115 (5th Cir.
2016) (the district court “spoke of ‘punishment[]’ . . . as a shorthand way of referring
to the penalty that Rodriguez was to receive for having violated the terms of
[supervised release]”). Thus, as in United States v. Malloy, “the record shows that
the court did not rely on [a] new law violation,” viewing child pornography, in
imposing the 24-month sentence. 343 F. App’x 149, 152 (8th Cir. 2009). For these
reasons, we conclude the district court did not commit plain procedural error by
basing its sentence on a fact not supported by the record.
Kocher additionally argues the district court did not adequately explain its
chosen sentence, did not adequately consider mitigating factors, and imposed an
unduly harsh penalty. We disagree. On this extensive record of repeated supervised
release violations, the district court’s brief explanation was more than sufficient “to
allow for meaningful appellate review and to promote the perception of fair
sentencing.” Gall v. United States, 552 U.S. 38, 50 (2007). We have frequently
upheld revocation sentences that varied upward from the advisory guidelines range
because defendant was a “recidivist violator” of supervised release conditions.
Malloy, 343 F. App’x at 151. This is not “the unusual case when we reverse a district
court sentence -- whether within, above, or below the applicable Guidelines range --
as substantively unreasonable.” United States v. Feemster, 572 F.3d 455, 464 (8th
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Cir. 2009) (en banc). There was no abuse of the district court’s substantial sentencing
discretion.
We affirm the Amended Judgment in a Criminal Case dated February 16, 2018.
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