                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-1271
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                 Jacob Scott Watters

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                   for the Southern District of Iowa - Davenport
                                  ____________

                           Submitted: December 15, 2017
                               Filed: May 2, 2018
                                   [Unpublished]
                                  ____________

Before WOLLMAN, LOKEN, and MURPHY, Circuit Judges.
                         ____________

PER CURIAM.

      In 2016 Jacob Watters pled guilty to receipt of child pornography under 18
U.S.C. § 2252(a)(2). At sentencing, the district court1 determined that Watters' prior

      1
       The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa.
Iowa conviction for Lascivious Acts with a Child qualified as a predicate offense for
enhanced sentencing under 18 U.S.C. § 2252(b)(1) and sentenced him to 240 months
imprisonment. Watters appeals his sentence. We affirm.

                                          I.

       In 2013 Watters pled guilty to one count of Lascivious Acts with a Child, IOWA
CODE § 709.8. Watters, nineteen at the time, had carried on a sexual relationship with
A.L., a twelve year old girl. In 2014 Iowa police learned that Watters had exchanged
sexually explicit photos with a fifteen-year-old California girl. Officers searched his
home and discovered multiple electronic devices containing a total of about 400
sexually explicit photos of six minor girls, including A.L. and T.W., who were
seventeen when the photos were taken. The photos of A.L. predated Watters' 2013
conviction, and he procured photos of the four other girls after extensive online
communications in 2014 and early 2015.

       In February 2015 Watters pled guilty to receipt of child pornography, 18 U.S.C.
§ 2252(a)(2). Section 2252(b)(1) mandates a 5-20 year sentence for anyone who
violates § 2252(a)(2), but increases the mandatory sentence to 15-40 years when the
defendant has a prior conviction for certain sexual offenses. At sentencing, the
district court found that Watters' 2013 Iowa conviction (lascivious acts with a child)
qualified as a predicate offense under § 2252(b)(1). He thus had a mandatory
minimum of 15 years and a maximum sentence of 40 years.

      The district court determined that Watters' guideline offense level was 36
(including a five level "relevant conduct" enhancement of his base offense level under
U.S.S.G. § 2G2.1(d)(1)). The district court calculated a guideline range of 210-262
months and sentenced Watters to 240 months imprisonment.




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                                           II.

       Watters first argues the district court improperly applied the relevant conduct
enhancement and thus his total offense level should have been 35 rather than 36,
resulting in a guideline range of 188–235 months. "We review the district court's
interpretation of the guidelines de novo and the court's relevant conduct
determination for clear error." United States v. Allebach, 526 F.3d 385, 388 (8th Cir.
2008) (citation omitted).

       Section 2G2.1(d)(1) states: "If the offense involved the exploitation of more
than one minor, Chapter Three, part D (Multiple Counts) shall be applied."
Application Note 7 under § 2G2.1 clarifies that "if the relevant conduct of an offense
of conviction includes more than one minor being exploited, whether specifically
cited in the count of conviction or not, each such minor shall be treated as if
contained in a separate count of conviction." Under §3D1.4, a defendant's offense
level may be enhanced by 5 units if he has more than 5 incidents of relevant conduct
and 4 units for between 3.5 to 5 incidents of relevant conduct.

        "Relevant conduct" consists of all acts and omissions committed by the
defendant "that occurred during the commission of the offense of conviction, in
preparation for that offense, or in the course of attempting to avoid detection or
responsibility for that offense." § 1B1.3(a)(1)(A). Relevant conduct is a "broad
concept" that "includes activities that occurred before the date identified by the
indictment as the starting date of the offense." United States v. Burman, 666 F.3d
1113, 1119 (8th Cir. 2012) (citation omitted). "Conduct underlying a prior conviction
is not relevant to the instant offense if the former conviction was a 'severable, distinct
offense' from the latter." United States v. Weiland, 284 F.3d 878, 881 (8th Cir. 2002)
(citation omitted).




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      The district court determined that Watters had six incidents of relevant conduct
and thus enhanced his offense level five units. Watters argues the district court
should have only enhanced his offense level four units because his conduct toward
victims T.W. and A.L. is irrelevant. Watters procured sexually explicit images of
T.W. in person when the two were seventeen and in a romantic relationship. He
argues that his conduct toward her was distinct from his 2014 behavior. Additionally,
Watters argues that his conduct toward A.L. is irrelevant because it occurred prior to
his 2014 offense and the photos were taken in person rather than online. Watters
continued to possess the images of T.W. and A.L. until 2014, however, so his conduct
"occurred during the commission of the offense of conviction." § 1B1.3(a)(1)(A).
Thus, the district court did not clearly err when it made its relevant conduct findings
under § 1B1.3(a)(1)(A) and applied that enhancement.

                                         III.

      Watters also argues the district court erred in determining his prior conviction
for Lascivious Acts with a Child, IOWA CODE § 709.8, qualifies as a predicate offense
under 18 U.S.C. § 2252(b)(1). Whether a defendant's prior conviction qualifies as a
predicate offense under § 2252(b)(1) is reviewed de novo. United States v. Weis, 487
F.3d 1148, 1151 (8th Cir. 2007).

       We need not decide whether the district court erred in determining Watters'
prior conviction qualified as a predicate offense because even if the court erred, the
error would have been harmless. "When the district court would have imposed the
same sentence absent an error, such error is harmless." United States v. Jauron, 832
F.3d 859, 864 (8th Cir. 2016). After sentencing Watters to 240 months, the district
court stated: "It is the same decision the Court would have reached even if
[defendant's prior conviction] does not qualify to enhance the mandatory minimum
or maximum sentence. This sentence was largely driven by, of course, the behavior
and the Court's belief in the reasonableness of the Guideline range." Watters'

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sentence also was within the mandatory sentence of 5 to 20 years so that any error in
the application of the enhancement would be harmless.

                                        IV.

      Accordingly, the judgment of the district court is affirmed.
                      ______________________________




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