Submitted October 10, 2014.
Appeal from United States District Court for the District of Nebraska - Omaha.
For United States of America, Plaintiff - Appellee: Michael P. Norris, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, District of Nebraska, Omaha, NE.
Joshua M. Meyer, Defendant - Appellant, Pro se, Marianna, FL.
For Joshua M. Meyer, Defendant - Appellant: David R. Stickman, Federal Public Defender, FEDERAL PUBLIC DEFENDER'S OFFICE, Omaha, NE.
Before COLLOTON, BRIGHT, and SHEPHERD, Circuit Judges.
COLLOTON, Circuit Judge.
Joshua Meyer pleaded guilty to receipt and possession of child pornography in violation of 18 U.S.C. § § 2252(a)(2) and 2252(a)(4)(B). Using websites and a peer-to-peer file-sharing program, Meyer accessed and downloaded over 300 videos and 700 images of child pornography. The district court sentenced Meyer to 120 months' imprisonment. Meyer appeals, challenging his sentence on both procedural and substantive grounds. We affirm.
Meyer argues first that the district court erred at sentencing by relying on information that was not disclosed to him, in violation of Federal Rule of Criminal Procedure 32. The information at issue concerns another child pornography case, involving a defendant named Partain, in which the district court imposed sentence the week before Meyer's sentencing. During Meyer's sentencing hearing, the government urged the court to impose a sentence of 210 months' imprisonment, at the bottom of the advisory guideline range. At the outset, the prosecutor remarked that he had sought a sentence of ten years for Partain the week before, and said that he would explain why Meyer's case deserved at least ten years.
The prosecutor then stated that he had described " GigaTribe" software for the court during Partain's sentencing, and asserted that use of GigaTribe involves knowing actual distribution of child pornography from one person to another, not merely " passive distribution where you allow somebody access to your computer and you don't know whether anything's been taken or not." Counsel for the government also reported that he was disappointed with the probation office's sentencing recommendation for Partain. The prosecutor then listed " things that separate [Meyer] from other defendants such as Mr. Partain," including violations of pretrial release that resulted in detention and a criminal record. Meyer's counsel, during his argument, stated that he was " at a huge disadvantage" because he did not see the sentencing in the Partain case, and
complained that it was unfair for the government to cite that case.
When imposing sentence, the district court referred twice to Partain's case. The court observed that Meyer's case was " pretty much like last week except for a couple of factors that I feel are somewhat different." The court later explained that " last week Mr. Partain -- I sentenced him to 84 months and had the plea for five years." Turning to Meyer's case, the court opined ...