                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 11-2463
                        ___________________________

                             United States of America

                       lllllllllllllllllllll Plaintiff - Appellee

                                          v.

                                Steven Allen Braun

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                     for the District of Minnesota - St. Paul
                                 ____________

                            Submitted: March 12, 2012
                              Filed: August 20, 2012
                                  [Unpublished]
                                  ____________

Before MURPHY, ARNOLD, and GRUENDER, Circuit Judges.
                          ____________

PER CURIAM.

     Steven Allen Braun pled guilty to one count of possession of child
pornography, a violation of 18 U.S.C. § 2252(a)(4)(B), (b)(2). At sentencing, the
district court1 noted that, absent the statutory maximum sentence of 120 months’
imprisonment, the advisory sentencing guidelines range would have been 135 to 168
months based on a total offense level of 33 and a criminal history category of I.
Under U.S.S.G. § 5G1.1(a), however, the statutory maximum sentence of 120
months’ imprisonment became the guidelines sentence. The district court sentenced
Braun to 84 months’ imprisonment. Braun appeals his sentence, and we affirm.

       We review a district court’s sentence both for significant procedural error and
for substantive reasonableness. Gall v. United States, 552 U.S. 38, 51 (2007).
Because Braun does not argue that the district court committed any procedural error,
we address only the substantive reasonableness of his sentence. See United States v.
O’Connor, 567 F.3d 395, 397 (8th Cir. 2009). We review the substantive
reasonableness of a sentence under an abuse-of-discretion standard. United States v.
Mees, 640 F.3d 849, 856 (8th Cir. 2011). An abuse of discretion occurs “where the
sentencing court ‘fails to consider a relevant factor that should have received
significant weight, gives significant weight to an improper or irrelevant factor, or
considers only the appropriate factors but commits a clear error of judgment in
weighing those factors.’” United States v. Moore, 565 F.3d 435, 438 (8th Cir. 2009)
(quoting United States v. Kowal, 527 F.3d 741, 749 (8th Cir. 2008)).

       “[I]t will be 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 Cir.
2009) (en banc) (quoting United States v. Gardellini, 545 F.3d 1089, 1090 (D.C. Cir.
2008)). Where the bottom of the sentencing guidelines range is above the statutory
maximum, “the statutory maximum sentence is presumed reasonable.” United States
v. Shafer, 438 F.3d 1225, 1227 (8th Cir. 2006). Moreover, “where a district court has


      1
       The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota.

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sentenced a defendant below the advisory guidelines range, ‘it is nearly inconceivable
that the court abused its discretion in not varying downward still further.’” United
States v. Moore, 581 F.3d 681, 684 (8th Cir. 2009) (per curiam) (quoting United
States v. Lazarski, 560 F.3d 731, 733 (8th Cir. 2009)).

       Braun argues that the district court gave significant weight to an improper
factor by considering an allegedly false statistic regarding recidivism rates for sex
offenders.2 Because Braun did not object to the district court’s citation to the statistic
at sentencing, we review this issue only for plain error. See O’Connor, 567 F.3d at
397. For us to find plain error, Braun would have “to show that (1) there was an error
that was not affirmatively waived, (2) the error was ‘plain,’ meaning clear and
obvious, (3) the error affects his substantial rights, and (4) the error ‘seriously affects
the fairness, integrity or public reputation of judicial proceedings.’” See United
States v. Ali, 616 F.3d 745, 752 (8th Cir. 2010) (quoting Puckett v. United States, 556
U.S. 129, 135 (2009)). Thus, Braun must show that “there is a reasonable probability
[he] would have received a lighter sentence but for the error.” See United States v.
Mireles, 617 F.3d 1009, 1013 (8th Cir. 2010) (quoting United States v. Bain, 586 F.3d
634, 640 (8th Cir. 2009) (per curiam)).

       Braun challenges the district court’s statement that “[o]ne thing about people
that are sex offenders . . . [is that] the repeat offender and recidivism rate is so far
beyond all other crimes, that it takes most people’s breath away.” Braun contends
that the district court relied on this assertion in fashioning his sentence and seeks to
rebut the district court’s assertion by citing two sources not in the record before the
district court and by comparing the recidivism rate of sex offenders within the first
three years after release with the total recidivism rate of all inmates. Even if Braun

      2
        We recognize a second line of authority that regards the consideration of an
improper factor as a procedural error. See O’Connor, 567 F.3d at 397 n.3. We need
not resolve this question, however, because we would reach the same result under
either framework.

                                           -3-
had successfully demonstrated that the district court’s assertion regarding recidivism
rates was inaccurate, however, he has not established any impact of the alleged error
on his sentence. The district court made this assertion not while explaining its
consideration of the 18 U.S.C. § 3553(a) factors but while commenting more
generally on several differences between the criminal justice system in Minnesota and
the federal criminal justice system. The district court indicated several times that it
raised these points to aid the defendant and his family in understanding why the
sentence it would impose would be more severe than his prior state sentence for
criminal sexual conduct and explained that these issues did not “directly affect the
sentence.” Braun points to no evidence that the district court relied on the disputed
assertion in fashioning his sentence, let alone to any evidence establishing that his
sentence would have been different absent the assertion. “[W]here the effect of the
error on the result in the district court is uncertain or indeterminate—where we would
have to speculate—the appellant has not met his burden of showing a reasonable
probability that the result would have been different but for the error.” United States
v. Chauncey, 420 F.3d 864, 878 (8th Cir. 2005) (alteration in original) (quoting
United States v. Pirani, 406 F.3d 543, 553 (8th Cir. 2005) (en banc)). Braun’s
“failure to demonstrate prejudice is fatal to [his] claim.” See Mireles, 617 F.3d at
1013.

      Braun also contends that the district court gave insufficient weight to his
vulnerability to sexual assault while in prison and the importance of continuing his
current sexual offender treatment program. However, the district court specifically
addressed and rejected Braun’s argument that he would be especially vulnerable to
sexual assault in prison or that such vulnerability militated in favor of a more lenient
sentence. Furthermore, the sentencing transcript clearly indicates that the district
court was aware of the significance of Braun’s current sexual offender treatment
program. The district court’s decision to place greater emphasis on factors that
favored the sentence given—one that is below the advisory guidelines
range—rather than on other § 3553(a) factors that might favor a more lenient sentence

                                          -4-
is a permissible exercise of the considerable discretion available to a sentencing court.
See United States v. Ruelas-Mendez, 556 F.3d 655, 658 (8th Cir. 2009). Braun has
not shown that the district court failed to consider a relevant factor or clearly erred
in weighing the § 3553(a) factors.

      For the foregoing reasons, the judgment of the district court is affirmed.
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