                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-1775
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                  Michael Cottrell

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

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

                            Submitted: January 9, 2017
                               Filed: April 4, 2017
                                 ____________

Before COLLOTON, MURPHY, and MELLOY, Circuit Judges.
                         ____________

MELLOY, Circuit Judge.

       Michael Cottrell pled guilty to one count of receipt of child pornography, in
violation of 18 U.S.C. §§ 2252(a)(2) and 2252(b)(1), and one count of possession of
child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(b) and 2252A(b)(2).
The district court1 sentenced Cottrell to 360 months’ imprisonment, at the bottom of
his advisory range under the United States Sentencing Guidelines. Cottrell appeals,
arguing the district court procedurally erred by considering unproven facts in
imposing the sentence and abused its discretion by imposing a substantively
unreasonable sentence. We affirm.

                                          I.

      After law enforcement learned that Cottrell was using peer-to-peer file sharing
software to download child pornography, officers executed a search warrant at
Cottrell’s residence. During the search, officers found an HP laptop and notebooks
belonging to Cottrell. The notebooks contained handwritten stories by Cottrell
depicting incest and minors engaged in sexual acts. A forensic examiner later found
422 videos and 1,687 images of possible child pornography on the laptop, including
images of prepubescent children.

      During execution of the search warrant, officers interviewed Cottrell. Cottrell
admitted he downloaded child pornography and stated he normally did not share his
child pornography files. Cottrell also told officers that he was charged with two
counts of first degree sodomy as a juvenile in Kentucky, he pled guilty to two counts
of misdemeanor third degree sexual misconduct, and he went to counseling. In a
second interview, Cottrell stated that he “agreed to misdemeanors” and was put in
counseling following the Kentucky charges. Regarding the handwritten stories found
during the search, Cottrell explained that in counseling he was taught to write stories
about his feelings.




      1
       The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.

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       Cottrell was indicted for receipt of child pornography, in violation of 18 U.S.C.
§§ 2252(a)(2) and 2252(b)(1), and possession of child pornography, in violation of
18 U.S.C. §§ 2252A(a)(5)(b) and 2252A(b)(2). He pled guilty to both offenses.
Before sentencing, the Government indicated that based upon the Kentucky incident
it would attempt to prove a prior conviction for sexual abuse or abusive sexual
conduct involving a minor to increase Cottrell’s sentence. The initial Presentence
Investigation Report (“PSR”) calculated a guideline range of 360–720 months (720
months being the statutory maximum), based on an offense level of 42 and a criminal
history category of I. Treating the Kentucky incident as a conviction, the guideline
range included the enhancement for a prior conviction pursuant to 18 U.S.C.
§§ 2252(b)(1) and 2252A(b)(2). The guideline range also included a five-level
enhancement for engaging in a pattern of activity involving sexual abuse or
exploitation of a minor pursuant to United States Sentencing Guideline § 2G2.2(b)(5).

       Cottrell made a number of objections to the initial PSR. Specifically, Cottrell
argued there was insufficient evidence to support an enhancement for a prior
conviction. The Government subsequently declined to pursue the enhancement
because evidence regarding the Kentucky incident was limited. The only records the
Government produced were handwritten juvenile court docket cards that were largely
illegible as to what the actual charges were and the final disposition of those charges.

     At sentencing, the district court calculated Cottrell’s guideline range as
360–480 months. The Government requested a guideline sentence and Cottrell
moved for a downward variance. In rejecting that motion, the court stated:

      There are several aggravating factors that could take the Court to the
      very top of the advisory guideline range, including the fact that he has
      a prior conviction for hands-on abuse of minor children that were under




                                          -3-
      his care as a baby-sitter; that he had over 33,000 images,2 and the
      guidelines score a level 5 for 600 or more images; and the fact that he
      violated the terms of his pretrial release by continuing to view and seek
      out erotica on his cellphone.

Discussing Cottrell’s history and characteristics, the court noted “his juvenile
commitment for sex abuse second degree out of Kentucky.” Cottrell did not object
to these comments. The court sentenced Cottrell to 360 months’ imprisonment,
consisting of 240 months for receipt of child pornography and 240 months for
possession of child pornography, to be served concurrently, except that 120 months
of the sentence for possession is to run consecutively to the 240 months imposed for
receipt.

                                          II.

      Cottrell raises two arguments on appeal. First, Cottrell argues the district court
procedurally erred by relying on Cottrell’s unproven conviction for second degree
sexual abuse as a juvenile. Second, Cottrell argues a 30-year sentence for a first
offense is substantively unreasonable.

                                          A.

      Cottrell contends his 360-month sentence was the result of procedural error.
To be clear, the district court did not impose a sentence enhancement based on the
unproven conviction. Rather, the court cited the unproven conviction in denying
Cottrell’s motion for a downward variance. “Procedural error includes failing to
calculate (or improperly calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on


      2
      The PSR stated that Cottrell possessed a total of 33,337 child pornography
images. Cottrell did not object.

                                          -4-
clearly erroneous facts, or failing to adequately explain the chosen
sentence—including an explanation for any deviation from the Guidelines range.”
United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (emphasis
added) (quotations and citations omitted).

       Because Cottrell failed to object to the district court’s alleged procedural error,
we review for plain error. United States v. Grimes, 702 F.3d 460, 470 (8th Cir.
2012). “To establish plain error, [a defendant] must prove (1) there was error, (2) the
error was plain, and (3) the error affected his substantial rights.” Id. (alteration in
original) (quoting United States v. Miller, 557 F.3d 910, 916 (8th Cir. 2009)). “[A]n
error is prejudicial in the sentencing context ‘only if there is a reasonable probability
that the defendant would have received a lighter sentence but for the error.’” Id.
(quoting Miller, 557 F.3d at 916).

        Cottrell focuses on two statements from the district court during the sentencing
hearing: (1) “There are several aggravating factors that could take the Court to the
very top of the advisory guideline range, including the fact that he has a prior
conviction for hands-on abuse of minor children that were under his care as a baby-
sitter;” and (2) “We talked about . . . his juvenile commitment for sex abuse second
degree out of Kentucky.” Cottrell argues that these statements lack factual support
because the record does not establish the disposition of the Kentucky charges.

       It is undisputed that Cottrell was involved in an incident involving sex abuse
in Kentucky as a juvenile. However, as the Government conceded, the disposition
of the juvenile case is unclear and the Government thus declined to pursue the
statutory enhancement based on a prior conviction. Further, though the PSR
contained information regarding the Kentucky incident in a number of different
paragraphs, Cottrell objected to those paragraphs.




                                           -5-
       The district court erred in relying on unproven, objected-to facts. “A PSR is
not evidence and not a legally sufficient basis for findings on contested issues of
material fact. If the PSR’s factual allegations are objected to, the government may
prove relied-on and contested facts. Then, the court must either make findings by a
preponderance of the evidence or disregard those facts.” United States v. Webster,
788 F.3d 891, 892 (8th Cir. 2015) (citations omitted). In this case, the Government
did not prove Cottrell’s prior conviction by a preponderance of the evidence. Thus,
the error is plain because “the district court must not consider contested facts without
proof by a preponderance of the evidence.” Id.

       The prior conviction, however, was only one basis for denying Cottrell’s
requested downward variance. “To demonstrate an effect on substantial rights,
[Cottrell] must show a reasonable probability that but for the error, he would have
received a more favorable sentence.” Id. Cottrell has failed to establish a reasonable
probability that he would have received a more favorable sentence if the district court
had not relied on his unproven prior conviction. First, the Kentucky charges were
only one factor cited by the court in denying a downward variance. The court also
denied the variance due to the number of images Cottrell possessed “and the fact that
he violated the terms of his pretrial release by continuing to view and seek out erotica
on his cellphone.” Second, even considering these facts, the court sentenced Cottrell
at the bottom of his guideline range. Finally, the conduct underlying the Kentucky
charges, regardless of the disposition of those charges, is undisputed. Cottrell readily
admitted that he sexually abused minor children as a juvenile in Kentucky and there
is evidence in the record as to this conduct. As a result, Cottrell has not shown a
reasonable probability “that but for the error, he would have received a more
favorable sentence.” Id.




                                          -6-
                                         B.

       Cottrell also argues his sentence is substantively unreasonable because the
district court improperly considered the unproven conviction. We review the
substantive reasonableness of a sentence for abuse of discretion. Feemster, 572 F.3d
at 461. On appeal, “[a] sentence falling within the applicable guideline range may be
presumed to be substantively reasonable.” United States v. Linderman, 587 F.3d 896,
901 (8th Cir. 2009). Cottrell argues that, in addition to the improper reliance on the
unproven conviction, his sentence is unreasonable because he accepted responsibility,
he has no criminal history, and he attempted to prevent further distribution of child
pornography. However, as Cottrell’s sentence came within the guideline range and
is amply supported by the record, Cottrell’s arguments are insufficient to rebut the
presumptive reasonableness of his sentence.

                                         III.

      Accordingly, we affirm the judgment of the district court.
                          _______________________




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