                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 10-2263
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of North Dakota.
David Mills Becker,                     *
                                        *
            Appellant.                  *
                                   ___________

                             Submitted: February 15, 2011
                                Filed: April 11, 2011 (corrected 4/15/11)
                                 ___________

Before RILEY, Chief Judge, WOLLMAN, Circuit Judge, and KYLE,1 District
Judge.
                              ___________

KYLE, District Judge.

      David Becker appeals his sentence of 210 months in prison for sexual
exploitation of his minor daughter. He argues that the district court2 (1) violated
Federal Rule of Criminal Procedure 32 by relying upon undisclosed information
      1
       The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota, sitting by designation.
      2
       The Honorable Daniel L. Hovland, United States District Judge for the District
of North Dakota.
about the North Dakota Board of Parole in fashioning its sentence, and (2) failed to
consider the requirements of Sentencing Guideline § 5G1.3(b). We find no merit
to either contention and, accordingly, affirm.

I.    FACTUAL BACKGROUND

       In November 2008, Becker’s biological son (M.B.) and daughter (T.B.)
disclosed ongoing sexual abuse by their father, which had begun when they were
eleven and nine years old, respectively. The incidents of sexual abuse were
numerous and included oral, anal, and vaginal intercourse. During their
investigation, state law-enforcement officers executed a warrant and seized a
computer from Becker. Three images discovered on this computer depicted a
pubescent minor female with her vagina and anus exposed; two of the images also
showed a man’s hand on or near the girl’s body. T.B. confirmed that the
photographs were of her, taken by her father when she was 13 or 14 years old, and
the male hand was his.

       Before any federal charges were filed, Becker pled guilty in North Dakota
state court to two counts of continuous sexual abuse of minors (one count for each
child). In June 2009, the state court sentenced him to two concurrent 30-year terms
of imprisonment, with five years suspended. Subsequently, as a result of the
images of T.B. discovered during the state investigation, Becker was indicted for
two federal crimes in October 2009: (1) sexual exploitation of a minor, and
(2) possession of materials involving the sexual exploitation of a minor. He pled
guilty to Count I, the sexual-exploitation charge, in February 2010. The Plea
Agreement set forth the following factual basis:

      [B]eginning in April 2003, through November 2008 the defendant, a
      parent having custody and control of T.B. a minor knowingly
      permitted T.B. to engage in sexually explicit conduct for the purpose



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      of producing visual depictions of such conduct produced using
      materials that had been mailed, shipped, and transported in interstate
      commerce by any means, including by computer.

The district court accepted Becker’s guilty plea to Count I and ordered a
presentence report (PSR).

      At sentencing, the court adopted the guidelines range of 168 to 210 months
calculated in the PSR. There was no objection to this calculation or to any of the
PSR’s contents. C.B., the victims’ mother and Becker’s ex-wife, spoke to the court
about the effects of the abuse and expressly requested that Becker’s sentence run
consecutive to his state sentence. The Government also recommended a
consecutive sentence and asked for 180 months, the statutory mandatory minimum.
Becker sought a 180-month sentence as well, but he asked that it be concurrent
with his state sentence (which he had already been serving for 11 months at the
time of his sentencing on the federal crime). Noting that it found Becker’s conduct
“egregious” and “disturbing,” the district court imposed a 210-month sentence and
ordered that it run consecutive to his state sentence. Becker now appeals.

II.   DISCUSSION

      A.     Rule 32 Violation

       Becker first argues that the district court violated Federal Rule of Criminal
Procedure 32 by considering undisclosed information from the judge’s prior
service on the North Dakota Board of Parole. Since Becker did not object before
the district court, his claim is reviewed for plain error. See United States v.
Molnar, 590 F.3d 912, 915 (8th Cir. 2010). Accordingly, he must show “(1) error,
(2) that is plain, and (3) that affects substantial rights.” United States v. Lovelace,
565 F.3d 1080, 1090 (8th Cir. 2009). Further, plain-error review requires Becker



                                          -3-
to show that the error “seriously affects the fairness, integrity, or public reputation
of judicial proceedings.” Id. (citations omitted).

      Rule 32 sets forth a defendant’s right to “have access to the material on
which the court will base its sentencing decision and an opportunity to respond to
information that is prejudicial to [his] cause.” United States v. Foster, 575 F.3d
861, 863 (8th Cir. 2009). Becker was unaware of the district judge’s personal
knowledge about the state prison system and its parole decisions prior to
sentencing; thus, he claims Rule 32 was violated.

      Becker identifies the following statements by the district court in support of
his argument. First, while discussing the various sentencing considerations, it
contemplated what might happen within the state system, stating:

      Well, I served on the parole board a number of years and I know how
      they operate. Conditions are extremely crowded at the North Dakota
      State Penitentiary right now, and so when conditions are crowded, the
      trend is to get people out of there quickly, if possible. And if they’re
      subject to a federal sentence, the trend is to release them early to their
      federal sentence so they get off the state system and into the federal
      system, saving the state considerable money and opening up bed
      space.

In response to the court, both the Government and Becker conceded that early
parole on the state sentence was possible. Later, when imposing Becker’s
sentence, the court also commented:

      My concern in this case is that you’re going to be released from the
      state system early. I know how the system operates. I was on the
      parole board. I know what the mind set of the Department of
      Corrections is when they’re faced with individuals such as yourself,
      who have got a long state sentence and a long federal sentence.



                                          -4-
      That’s the great unknown, if you’re going to be released or not, but
      regardless of whether you would be released early by the state system
      to serve your federal sentence or not, I would reach the same
      conclusion. This was a rather egregious offense and to me very
      disturbing behavior that I’ve read about.

Although not raised at the time of sentencing, Becker now argues it was improper
for the district court to consider this information about parole decisions. The
Government does not dispute that Becker was unaware of this information prior to
sentencing. However, it argues the court’s comments about what might happen in
the state system were merely an academic discussion and did not ultimately affect
its sentencing decision. We agree and find no plain error.

       Becker relies heavily on this Court’s 2009 decision in Lovelace, in which the
defendant similarly argued that the district court violated Rule 32 by relying on
undisclosed information at sentencing. 565 F.3d at 1088–89. The challenge in
Lovelace, however, differed greatly from this case. There, the undisclosed
information was knowledge of a previous incident involving the defendant which
the district judge acquired while working as a city prosecutor, and the court
discussed the incident and its impact on individual victims at length during
sentencing. Id. at 1089. The court’s use of this outside information was akin to
relying on undisclosed victim letters. Id. (discussing United States v. Hayes, 171
F.3d 389, 391–95 (6th Cir. 1999)). On the other hand, the comments Becker
challenges here were much less extensive than those in Lovelace, and the district
court had no prior knowledge of Becker. Personal knowledge of a defendant’s
prior criminal conduct and its impact on victims, like undisclosed victim letters,
differs substantially from general knowledge about the prison system.

       Furthermore, even if Becker could show that the district court committed
error that was plain, his claim would fail under the third step of the plain-error test.
Step three requires Becker to show a “reasonable probability, based on the


                                          -5-
appellate record as a whole, that but for the error he would have received a more
favorable sentence.” Lovelace, 565 F.3d at 1092 (quoting United States v. Pirani,
406 F.3d 543, 552 (8th Cir. 2005)). He cannot do so here. The district court
acknowledged that whether Becker would be paroled early on his state sentence
was “a great unknown” and explicitly noted this was not a consideration in its
sentencing decision. The court advised Becker: “[R]egardless of whether you
would be released early by the state system to serve your federal sentence or not, I
would reach the same conclusion. This was a rather egregious offense and to me
very disturbing behavior that I’ve read about.” (emphasis added). It was
motivated to impose the sentence it did because of the severity and nature of
Becker’s offense. In short, Becker cannot show a reasonable probability that he
would have received a more favorable sentence than 210 months.

      B.    Failure to apply Guideline § 5G1.3(b)

       Becker next argues that his sentence failed to comply with Sentencing
Guideline § 5G1.3(b) in two respects: first, he was not given credit for eleven
months already served on his state convictions; and second, his sentence should
have run concurrent with, rather than consecutive to, his state sentence. Generally,
a district court’s sentencing decisions are reviewed for abuse of discretion. United
States v. Rutherford, 599 F.3d 817, 820 (8th Cir. 2010) (citing Gall v. United
States, 552 U.S. 38, 46 (2007)). Becker argues, however, that de novo review
should apply because he is asking the Court to review the district court’s
interpretation of the Sentencing Guidelines. Regardless how the claim is reviewed,
§ 5G1.3(b) does not apply here.

       Section 5G1.3(b) of the Sentencing Guidelines provides that credit should be
given for time served and that sentences should run concurrently when a defendant
is subject to a prior, undischarged sentence. However, subsection (b) applies only
where a defendant is subject to an undischarged term of imprisonment for another


                                        -6-
offense that is “relevant conduct to the instant offense of conviction . . . and that
was the basis for an increase in the offense level for the instant offense.” U.S.
Sentencing Guidelines Manual § 5G1.3(b) (2010). Further, it was intended to
apply only if “all of the prior offense . . . is relevant conduct to the instant offense.”
Id. § 5G1.3, cmt. n.2(A) (emphasis added). “Cases in which only part of the prior
offense is relevant conduct to the instant offense are covered under subsection (c)
[of § 5G1.3].” Id. Here, subsection (b) is not applicable given the nature of
Becker’s state convictions. His state sentence arose from two offenses—one for
sexual abuse related to M.B. and the other to T.B.—while the federal indictment
was only for the sexual exploitation of T.B. based on the photographs. The
offense-level enhancement used in calculating the guidelines range for Becker’s
federal sentence was solely for his sexual contact with T.B., as indicated in the
PSR. Thus, the state conviction and sentence resulting from Becker’s sexual abuse
of M.B. was wholly separate from any of the conduct underlying his federal
conviction.

       When a defendant has an undischarged sentence for offenses that are not
relevant or only partially relevant to the instant offense, subsection (c) of § 5G1.3
applies rather than subsection (b). Pursuant to § 5G1.3(c), “the sentence for the
instant offense may be imposed to run concurrently, partially concurrently, or
consecutively to the prior undischarged term of imprisonment to achieve a
reasonable punishment for the instant offense.” Thus, the Guidelines specifically
recognize that a consecutive sentence may be appropriate for a defendant in
Becker’s position, and they do not require credit for time served on an irrelevant or
partially relevant offense.




                                           -7-
      Moreover, regardless of the Sentencing Guidelines’ provisions,3 Becker’s
consecutive sentence is also consistent with 18 U.S.C. § 3584. See United States
v. Lone Fight, 625 F.3d 523, 525 (8th Cir. 2010) (“Even if the guidelines do not
recommend that sentences run consecutively, the district court has broad authority,
pursuant to 18 U.S.C. § 3584, to impose consecutive terms.”). Section 3584
provides:

      (a) Imposition of concurrent or consecutive terms. -- . . . if a term
      of imprisonment is imposed on a defendant who is already subject to
      an undischarged term of imprisonment, the terms may run
      concurrently or consecutively. . . . Multiple terms of imprisonment
      imposed at different times run consecutively unless the court orders
      that the terms are to run concurrently.

      (b) Factors to be considered in imposing concurrent or consecutive
      terms. -- The court, in determining whether the terms imposed are to
      be ordered to run concurrently or consecutively, shall consider, as to
      each offense for which a term of imprisonment is being imposed, the
      factors set forth in section 3553(a).

18 U.S.C. § 3584 (emphasis added). Under this statute, a district court has the
discretion to impose a sentence concurrently or consecutively based on the same
§ 3553(a) factors as other sentencing decisions.

      The district court here did what was required of it in fashioning a reasonable
sentence for Becker and determining whether it should be consecutive. It first
calculated the applicable guidelines range, and neither side objected to the
calculation or made any motion for a departure. It indicated that it had considered

      3
        Becker argues that Guideline § 5G1.3 is binding here. He relies on Dillon v.
United States, 130 S. Ct. 2683 (2010), in which the Supreme Court held that Guideline
§ 1B1.10 remains binding. It is not necessary to reach this argument, however. Even
if the Guideline at issue were treated as binding, the subsection applicable here—(c),
rather than (b)—does not mandate a concurrent sentence.

                                         -8-
the sentencing factors set forth in § 3553(a), noting it did not need to recite each
factor on the record where the sentence was within the guidelines range. E.g.,
United States v. Austad, 519 F.3d 431, 436 (8th Cir. 2008) (“[W]e do not require a
district court to categorically rehearse each of the section 3553(a) factors on the
record when it imposes a sentence as long as it is clear that they were
considered.”). After hearing from counsel, the defendant, and C.B., the district
court determined that a 210-month sentence (the top of the range) was appropriate,
and that it should run consecutive to Becker’s state sentence, as requested by both
the government and C.B. In Rutherford, this Court noted that “the district court
could have more clearly articulated the correct authority for the imposition of
consecutive sentences. In fact, the court completely omitted a discussion of § 3584
in making its sentencing decision. Yet, the § 3553(a) factors were properly
considered, as required by § 3584.” 599 F.3d at 822. The same is true here.

III.   CONCLUSION

       For all the foregoing reasons, we affirm Becker’s sentence.
                        ______________________________




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