                                               NOT PRECEDENTIAL


       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT

                     ___________

                     No. 18-3511
                     ___________



           UNITED STATES OF AMERICA

                           v.

                 JAY EUGENE REED,

                                        Appellant



     On Appeal from the United States District Court
         for the Middle District of Pennsylvania
        (District Court No.: 1-15-cr-00193-001)
      District Court Judge: Honorable Yvette Kane



       Submitted Under Third Circuit LAR 34.1(a)
                on September 17, 2019


Before: KRAUSE, MATEY, and RENDELL, Circuit Judges


           (Opinion filed: December 4, 2019)
                                         O P I N I O N*
                                         ____________

RENDELL, Circuit Judge:

       Appellant Jay Eugene Reed pleaded guilty to one count of production of child

pornography, one count of possession of child pornography involving minors under age

twelve, and two counts of witness tampering. The District Court sentenced Reed to 840

months’ imprisonment. Reed now appeals his sentence, arguing that the District Court

committed procedural error and that his sentence is substantively unreasonable. For the

reasons that follow, we will affirm the District Court’s sentence.

I.     BACKGROUND

       In 2013, Reed moved to Three Springs, Florida, where he lived with Deborah

Baughman, her daughter, and her two young granddaughters. Two years later, a friend of

one of Baughman’s granddaughters informed police that Reed had molested her. In the

ensuing investigation, three other minor children between the ages of nine and thirteen

came forward with similar allegations, including Baughman’s two granddaughters. The

victims reported that Reed molested them and/or took photographs of their genitals.

       The police searched Reed’s home and seized his electronic devices, which

contained hundreds of images of child pornography, including images of three of the

minor children Reed had assaulted. Reed was arrested, and shortly thereafter, contacted



       *
         This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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Baughman and one of his victims, instructing them to not speak to anyone about the case.

He also contacted Baughman’s daughter and told her not to take her daughters to the

Children’s Advocacy Center.

       Reed was charged with one count of production of child pornography, one count

of possession of child pornography involving minors under age twelve, and two counts of

witness tampering. He pleaded guilty to all counts without a plea agreement. Following

the plea, the United States Probation Office calculated Reed’s Guideline range to be life

in prison, which was lowered to 1,080 months due to statutory maximums.

       Reed submitted a sentencing memorandum, accompanied by an expert report from

a psychiatrist, Dr. Joseph Silverman. Relying on Dr. Silverman’s findings, Reed argued

that his pedophilic behavior was not inherent, but a symptom of a brain disorder. Dr.

Silverman also appeared at Reed’s sentencing hearing and testified that Reed’s brain

dysfunction “may have induced the change in sexual interest and behavior that led to

criminal activity.” A. 79. He distinguished inherent pedophilia from “late in life”

pedophilic behaviors but acknowledged that no such distinction is recognized in the

Diagnostic and Statistical Manual of Mental Disorders, the authoritative work on mental

disorders. Id. at 11. Based on this, Reed argued for the statutory minimum sentence of

fifteen years’ imprisonment.

      The District Court sentenced Reed to 840 months’ imprisonment. This appeal

followed. Reed argues that the District Court committed procedural error by failing to

evaluate his sentence using the proper sentencing procedures. He also argues that his

sentence is substantively unreasonable.

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II.    JURISDICTION AND STANDARD OF REVIEW

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have

jurisdiction pursuant to 28 U.S.C. § 1291. We review Reed’s substantive reasonableness

argument for abuse of discretion. United States v. Tomko, 562 F.3d 558, 567 (3d Cir.

2009) (en banc). We review any procedural objections that were not specifically raised

before the District Court for plain error. United States v. Christie, 624 F.3d 558, 567 (3d

Cir. 2010). “[I]n a criminal prosecution, unless a relevant objection has been made

earlier, a party must object to a procedural error after the sentence is pronounced in order

to preserve the error and avoid plain error review.” United States v. Flores-Mejia, 759

F.3d 253, 258 (3d Cir. 2014) (en banc). Reed argues that our review over his procedural

claim should be plenary. However, Reed did not raise the claim of procedural error until

this appeal was filed, and therefore cannot avoid plain error review on that issue. “An

error is plain if it is clear or obvious, affects substantial rights, and affects the fairness,

integrity or public reputation of judicial proceedings.” Id. at 259 (citations and internal

quotation marks omitted).

III.   DISCUSSION

       A.      Procedural Error

       Reed argues that the District Court committed procedural error by improperly

dismissing Dr. Silverman’s psychiatric testimony. We find no plain error.

       First, Reed argues that the District Court improperly assessed Dr. Silverman’s

testimony under the heightened evidentiary standard set forth in Daubert v. Merrell Dow


                                                4
Pharms., Inc., 509 U.S. 579 (1993), rather than the lower standard that typically applies

to evidence presented at a sentencing hearing. See 18 U.S.C. § 3661 (“No limitation shall

be placed on the information concerning the background, character, and conduct of

a person convicted of an offense which a court of the United States may receive and

consider for the purpose of imposing an appropriate sentence.”). Reed relies on one

sentence from the sentencing hearing, where the District Court noted, “[w]ere [Dr.

Silverman] here on a Daubert motion, I would likely reject the conclusions that he’s

offered to the court.” A. 90.

       The District Court’s passing reference to Daubert does not indicate that it was

evaluating the admissibility of the testimony under Federal Rule of Evidence 702.

Rather, the District Court specifically stated that “[i]n evaluating the defendant’s conduct,

of course, the court has to weigh the willfulness of what he has done, and Dr. Silverman’s

testimony is very important in doing that.” A. 90. The District Court then proceeded to

analyze the expert’s statements, along with the severity of Reed’s actions.

       Second, Reed argues that by applying the heightened standard to Dr. Silverman’s

testimony, the District Court did not adhere to its obligations under 18 U.S.C. § 3553(a).

District courts must follow a three-step process when sentencing a defendant. United

States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006). First, a district court must calculate

the defendant’s sentence using the procedures outlined in the Federal Sentencing

Guidelines. Id. Next, it must “formally rule on the motions of both parties and state on

the record whether they are granting a departure [from the Guidelines] and how that

departure affects the Guidelines calculation . . . .” Id. (citation and internal quotation

                                               5
marks and alterations omitted). Finally, a district court must consider the relevant factors

and exercise its discretion accordingly. Id. “[A] district court is ‘not required to

comment explicitly on every § 3553(a) factor [if] the record makes clear the court took

the factors into account in sentencing.’” United States v. Howe, 543 F.3d 128, 137 (3d

Cir. 2008) (quoting United States v. Parker, 462 F.3d 273, 278 (3d Cir. 2006)).

       Here, the District Court followed this three-step process. The District Court

completed a Guidelines calculation and arrived at a maximum sentence of 1,080 months.

When Reed’s counsel requested the statutory minimum sentence of fifteen years’

imprisonment, the District Court addressed arguments raised about his age, health, and

lack of criminal history, weighed those factors against the severity of the crime, and

ultimately decided to impose a higher sentence. The District Court considered the

§ 3553(a) sentencing factors, explaining that the sentence imposed was “sufficient to

punish, deter, promote respect for the law, and reflect the seriousness of the defendant’s

conduct,” and discussed the severity of harm done to Reed’s victims. A. 91. Given that

the 840-month sentence is twenty years below the maximum Guidelines sentence, we

find no plain error.

       B.     Substantive Reasonableness

       Reed also argues that his 840-month sentence is substantively unreasonable. He

cites to his age, health issues, and minimal criminal history as evidence that the sentence

should be closer to the statutory minimum of fifteen years’ imprisonment.

       In reviewing for substantive reasonableness, “we will affirm [the sentence] unless

no reasonable sentencing court would have imposed the same sentence on that particular

                                              6
defendant for the reasons the district court provided.” United States v. Negroni, 638 F.3d

434, 443 (3d Cir. 2011) (quoting Tomko, 562 F.3d at 567). Given the nature and severity

of Reed’s crimes and the below-guidelines sentence length, the sentence imposed was

substantively reasonable. We do not find that the District Court abused its discretion

when it sentenced Reed to 840 months’ imprisonment.

IV.      CONCLUSION

         For the foregoing reasons, we will affirm the sentence imposed by the District

Court.




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