                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 14-1519
                        ___________________________

                             United States of America,

                        lllllllllllllllllllll Plaintiff - Appellee,

                                            v.

                                  Joshua M. Meyer,

                      lllllllllllllllllllll Defendant - Appellant.
                                       ____________

                     Appeal from United States District Court
                      for the District of Nebraska - Omaha
                                 ____________

                            Submitted: October 10, 2014
                               Filed: April 17, 2015
                                  ____________

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 court1 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.




      1
      The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska.

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       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 that the minimum statutory term of five years’
imprisonment was not satisfactory.

       Meyer did not object to the district court’s statement of reasons or complain that
the court impermissibly considered information to which Meyer lacked access. We
therefore review Meyer’s challenge on appeal for plain error, and we see no obvious
violation of Rule 32.

       A defendant has a “basic right to be apprised of information on which the court
will rest its decision,” United States v. Foster, 575 F.3d 861, 863 (8th Cir. 2009), and
it was plain error in United States v. Lovelace, 565 F.3d 1080 (8th Cir. 2009), for a
judge to rely on personal knowledge of a defendant’s criminal history gleaned from
the judge’s former service as a prosecutor. Id. at 1091-92. Here, however, the record
does not show that the district court relied on extra-record information to select an
appropriate sentence for Meyer. The court did mention the sentence imposed in the
Partain case and observed that a couple factors differentiated Meyer’s case from
Partain’s. But in fixing a sentence for Meyer, the court said that it based its decision
on the factors set forth in § 3553(a).

       The court found it “incredible” that Meyer said he did not view the children
depicted in pornographic videos as victims: “[T]o look at young children being
treated the way they are in those pictures and you don’t think they’re a victim . . . .
I don’t know where your mind is, frankly.” The court expressed concern that the
sentencing guidelines “are somewhat irrational,” but also reasoned that using child
pornography was “pretty much near” the “most disgusting . . . course that a person can
take.” The court apparently viewed Meyer’s attempt to rebuild a stash of videos after

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the first batch was destroyed as an aggravating factor. The court ultimately varied
downward from the advisory guideline range of 210 to 240 months’ imprisonment and
sentenced Meyer to 120 months. The record does not show plainly that the court
relied on anything the prosecutor said about Partain’s case, and Meyer failed to object
so that the court could clarify any ambiguity. In these circumstances, there is no plain
error that warrants relief.

       Meyer also contends that the district court failed adequately to consider
documents that he submitted to illustrate his “difficult background, psychological
makeup, and rehabilitation efforts.” Meyer sent a six-page letter, a fourteen-page
psychological assessment, and seventeen pages of “certificates and commendations”
related to his rehabilitation efforts to the district court by e-mail. But the e-mailed
materials apparently never reached the judge, and Meyer provided the court with the
documents shortly before the sentencing hearing started.

       Meyer did not object to the district court’s alleged shortcoming, so we review
for plain error. Meyer’s brief on appeal acknowledges that the court delayed the
hearing briefly to review the materials, and Meyer had an opportunity to argue from
those documents during the hearing. We have no reason to believe that the court
ignored pertinent information. We note that in addition to the documents submitted
at the hearing, the presentence report also contained detailed information regarding
Meyer’s background, a summary of his efforts at rehabilitation, and another letter
written by Meyer explaining his “sexual addiction” and his understanding of the harm
caused by his actions.

      Meyer’s third claim of procedural error is that the district court failed
adequately to explain the chosen sentence. The court’s explanation was succinct, but
Meyer did not object to its adequacy, and we review under the plain-error standard.
The court thought the minimum advisory guideline sentence of 210 months was too
severe, but that the statutory minimum term of sixty months was insufficient. The

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presentence report and sentencing recommendation prepared by the probation office
included extensive information bearing on the sentencing factors set forth in
§ 3553(a), and the court confirmed that it had considered those criteria. The law
leaves a determination about appropriate brevity or length of discussion largely to the
professional judgment of the district court. Rita v. United States, 551 U.S. 338, 356
(2007). Here, where the district court opted to vary downward substantially from the
term recommended by the Sentencing Commission, and where Meyer did not seek
further elaboration about any particular point, we conclude that there was no plain
error warranting relief.

       Finally, Meyer argues that his sentence is substantively unreasonable. We
review the reasonableness of a sentence for abuse of discretion. Gall v. United States,
552 U.S. 38, 51 (2007). That the court sentenced Meyer below the advisory range
militates strongly in favor of reasonableness, see United States v. Moore, 581 F.3d
681, 684 (8th Cir. 2009) (per curiam), and we believe it was reasonable for the court
to select a term of 120 months’ imprisonment in light of Meyer’s offense conduct, his
history and characteristics, and the need for the sentence to afford adequate
deterrence.

      The judgment of the district court is affirmed.
                     ______________________________




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