                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 19-3248
                         ___________________________

                             United States of America

                                      Petitioner - Appellee

                                         v.

                                   Kevin Herring

                                    Defendant - Appellant
                                  ____________

                     Appeal from United States District Court
                 for the Northern District of Iowa - Cedar Rapids
                                  ____________

                            Submitted: April 15, 2020
                                Filed: April 28, 2020
                                 [Unpublished]
                                 ____________

Before COLLOTON, GRUENDER, and GRASZ, Circuit Judges.
                        ____________

PER CURIAM.

      In a superseding indictment, Kevin Herring was charged with, inter alia, one
count of sexual exploitation of a child, see 18 U.S.C. §§ 2251(a), (e), and one count
of receipt of child pornography, see 18 U.S.C. §§ 2252(a)(2), (b)(1). Herring
pleaded guilty to both counts. The district court 1 calculated a total offense level of
43 and a criminal history category VI. As applied to Herring, the two counts when
combined carried a statutory maximum of fifty years’ imprisonment, see §§ 2251(e),
2252(b)(1), so the sentencing guidelines recommendation was 600 months’
imprisonment, see U.S.S.G. §§ 5G1.1(a), 5G1.2 cmt. n.3(B). The district court
varied downward and sentenced Herring to 384 months’ imprisonment. Herring
appeals, challenging the substantive reasonableness of his sentence.

       We review the substantive reasonableness of a sentence for abuse of
discretion. United States v. Watters, 947 F.3d 493, 496 (8th Cir. 2020). A
“sentencing court abuses its discretion if it fails to consider a relevant factor that
should have received significant weight, gives significant weight to an improper or
irrelevant factor, or commits a clear error of judgment in weighing the appropriate
factors.” United States v. Luscombe, 950 F.3d 1021, 1031 (8th Cir. 2020). It is an
“unusual case” where “we reverse a district court sentence—whether within, above,
or below the applicable Guidelines range—as substantively unreasonable.” Id. And
“[w]here, as here, a district court has varied below the Guidelines range, it is nearly
inconceivable that the court abused its discretion in not varying downward still
further.” United States v. McCauley, 715 F.3d 1119, 1127 (8th Cir. 2013) (internal
quotation marks omitted).

       Herring argues that the district court should have varied downward further
and abused its discretion by failing to consider a relevant factor that should have
received significant weight—the assistance Herring provided law enforcement in
finding his victim and getting her “safe and off of the street.” During the sentencing
hearing, the district court heard from both the Government and Herring’s counsel
about his assistance to law enforcement in locating his victim. Herring’s counsel
again raised this factor after the district court asked about any “other grounds . . . for
a possible downward variance in this case.” Before varying downward, the district


      1
        The Honorable Leonard T. Strand, Chief Judge, United States District Court
for the Northern District of Iowa.

                                           -2-
court commented that in “coming up with sentences that are appropriate,” it had to
“consider various factors in the federal sentencing statutes.” It then recognized
“some factors that are somewhat mitigating” in this case. And it noted all the “other
issues” Herring raised as mitigating factors before specifically discussing the one it
found to have “the most merit”—the fact that, in the circumstances of this case, “the
guidelines overstate[d] the appropriate sentence.”

       We find no abuse of discretion here. A district court need not “specifically
mention the mitigating factors” a defendant raises, United States v. Nicholas, 773 F.
App’x 324, 326 (8th Cir. 2019) (per curiam), as we “do not require a mechanical
recitation of the § 3553(a) factors at sentencing,” United States v. Diaz-Pellegaud,
666 F.3d 492, 504 (8th Cir. 2012). Rather, “it simply must be clear from the record
that the district court actually considered the § 3553(a) factors in determining the
sentence.” Id. Where, as here, “the district court heard argument from counsel about
specific § 3553(a) factors, we may presume that the court considered those factors.”
See id.; cf. United States v. Torres-Ojeda, 829 F.3d 1027, 1029 (8th Cir. 2016) (“As
we have often said, a sentencing court need not specifically respond to every
argument presented at sentencing.”). In this case, the district court heard argument
about the mitigating factor in question and recognized all the mitigating factors
raised by Herring before focusing on one in support of its decision to vary downward
by 216 months. On this record, where the district court already “[v]ar[ied]
downward remarkably,” we cannot say the district court abused “its substantial
sentencing discretion by refusing to impose an even shorter sentence.” Torres-
Ojeda, 829 F.3d at 1030.

      We affirm.
                       ______________________________




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