                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 17-2620
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                               Jason Andrew Smith

                      lllllllllllllllllllllDefendant - Appellant
                                      ____________

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

                            Submitted: May 18, 2018
                             Filed: August 3, 2018
                                 [Unpublished]
                                 ____________

Before WOLLMAN, BENTON, and STRAS, Circuit Judges.
                         ____________

PER CURIAM.

     Jason A. Smith pled guilty to possessing child pornography in violation of 18
U.S.C. § 2252(a)(4)(B) and 2252(b)(2). The district court1 sentenced him to 90


      1
       The Honorable John A. Jarvey, Chief Judge, United States District Court for
the Southern District of Iowa.
months’ imprisonment. He appeals. Having jurisdiction under 28 U.S.C. § 1291, this
court affirms.

        Smith believes the district court erred in “relying on unproven and
unchallengeable information outside the record when imposing a 90-month prison
sentence.” Specifically, he asserts the court improperly relied on its “own internal
research on recidivism” in imposing his sentence. Because Smith did not raise this
issue in district court, review is for plain error. See United States v. McDill, 871 F.3d
628, 632 (8th Cir. 2017). Under plain error review, this court may reverse if “(1) there
is an error; (2) the error is plain; (3) the error affects the defendant’s substantial rights;
and (4) the error seriously affects the fairness, integrity or public reputation of judicial
proceedings.” Id. (internal quotation marks omitted).

       The facts do not support Smith’s argument. At sentencing, he called his
therapist to testify on his behalf. She said there was no indication that Smith ever
committed a sexual offense against a child and that it was unlikely for someone “who
engages in Internet or online offenses . . . to have hands-on victims.” Based on this,
she classified him as having a low-likelihood to re-offend. Later, the district court
said:

       There is no evidence in this case of a hands-on victim; but given the
       testimony here today, I should pause for just a moment to note that we
       study in this court sexual offenses and sexual offenders who come before
       the court. We have on retainer one of the five most published
       criminologists in the world that is studying our offender base. After his
       study of all of our sex offenders for five years and the polygraph
       information that they gave after they came out of prison, he informed us
       that 70 percent of them had hands-on victims, admitted to it with no
       incentive to admit to that, and that study is being replicated across the
       country with very, very consistent results. But there’s no evidence of a
       hands-on victim here, and I’m a judge of evidence, not speculation, not
       percentages. So I simply note that for the record, and that is not
       impacting this sentence. At least the studies that we’ve done is not going
       to impact the sentence.

                                             -2-
       District courts cannot “rely[] on information at sentencing that was not
presented in advance to the defendant.” United States v. Lovelace, 565 F.3d 1080,
1092 (8th Cir. 2009). But the district court here explicitly stated that the studies it
discussed would not “impact[] this sentence.” The district court did not err, let alone
plainly err, in discussing (but not relying on) this research at sentencing. See United
States v. Meyer, 790 F.3d 781, 783 (8th Cir. 2015) (distinguishing Lovelace and
holding there was no plain error where the court mentioned extra-record information
but the “record does not show that the district court relied on extra-record information
to select an appropriate sentence”); United States v. Lisenberry, 866 F.3d 934, 936-37
(8th Cir. 2017) (holding no abuse of discretion where the court discussed, but “did not
consider,” facts outside the record).

       Smith argues his within-guidelines 90-month sentence (guidelines range of 78
to 97 months) is substantively unreasonable. This court evaluates the substantive
reasonableness of a sentence under an abuse-of-discretion standard. United States v.
Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc). “A district court abuses its
discretion when it (1) fails to consider a relevant factor that should have received
significant weight; (2) gives significant weight to an improper or irrelevant factor; or
(3) considers only the appropriate factors but in weighing those factors commits a
clear error of judgment.” Id. (internal quotation marks omitted). “[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.” Id. at 464.

      Imposing the sentence, the district court said:

      In fashioning an appropriate sentence, I have considered each of the
      factors found in Title 18, United States Code, Section 3553(a). That
      means I have considered the nature and circumstances of this offense, as
      well as the history and characteristics of Mr. Smith. I have considered
      the seriousness of this crime. It’s serious because of the quantity of
      material we’re talking about. It’s a quantity that’s so large that it’s
      certainly within the top five I’ve seen. It’s serious because of the length
      of time. It’s serious because of the number of sites. It’s serious because

                                          -3-
      of the effort that it had to take to download and store 1,600 videos; but
      most importantly of all, it’s serious because of the nature of the images
      and videos that you’re attracted to.

      Paragraph 21(a) of the presentence report is very difficult to read, and I
      didn’t look at the images; but I’ve seen these kind of images before, and
      I know what we’re talking about here. I tried a jury trial once with those
      kinds of images, and jurors were sobbing, crying when they viewed it.

      I’ve considered the question of just punishment and note a very minor
      criminal history, which is fairly common in these cases.

      I’ve considered the need for adequate deterrence to criminal conduct, the
      need to promote respect for the law.

      I’ve considered the sentencing options that are available to the court.

      I’ve looked to the sentencing guidelines as an important though not in
      any way controlling factor to be considered.

      I’ve considered his education, his good work history, his family support.

                                        ....

      Based on all of the factors identified, as well as the arguments, both
      written and oral, from counsel, the court concludes that the following
      sentence is sufficient but not greater than necessary to address the
      essential sentencing considerations.

The district court considered the § 3553(a) factors and did not abuse its discretion
imposing a within-guidelines sentence.

                                    *******
      The judgment is affirmed.

STRAS, Circuit Judge, concurring in part and concurring in the judgment.


                                         -4-
       While explaining Smith’s sentence and without any prompting from the parties,
the district court discussed an unidentified study conducted by a court-retained
criminologist. Even if this alone was not error, the court did not allow the parties to
read the study, much less address its applicability to Smith or subject its methodology
or conclusions to meaningful adversarial testing. By discussing the study without
notifying the parties in advance or giving them a chance to respond, the court erred.
See, e.g., United States v. Gant, 663 F.3d 1023, 1029–30 (8th Cir. 2011) (stating that,
at sentencing, a court “may consider . . . uncorroborated hearsay, provided the
defendant is given a chance to rebut or explain it” (internal quotation marks, brackets,
and citation omitted)); cf. U.S.S.G. § 6A1.3(a) (“When any factor important to the
sentencing determination is reasonably in dispute, the parties shall be given an
adequate opportunity to present information to the court regarding that factor.”).

       To be sure, the district court disclaimed any reliance on the study when it
sentenced Smith, saying the study had no “impact” on its decision. But the court’s
statement did not cure its error. Rather, it reveals that the error did not affect Smith’s
substantial rights. See Puckett v. United States, 556 U.S. 129, 142 n.4 (2009); United
States v. Becker, 636 F.3d 402, 405–07 (8th Cir. 2011) (holding that the district
court’s “academic discussion” of undisclosed information, which “did not ultimately
affect [the] sentencing decision,” had no impact on the defendant’s substantial rights).
After all, saying that an error had no “impact” on a decision is the equivalent of saying
that the error is harmless. E.g., United States v. Johnson, 848 F.3d 872, 880 (8th Cir.
2017). Accordingly, I too conclude that the district court’s discussion of the study
does not require us to reverse Smith’s sentence, but for a different reason: the error did
not affect his substantial rights.
                          ______________________________




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