United States v. Hardy Kocher
932 F.3d 661
| 8th Cir. | 2019Background
- Kocher pleaded guilty in 2007 to possession of child pornography; sentenced to 27 months imprisonment and 10 years supervised release, beginning January 2010.
- Supervised-release conditions included mandatory sex-offender treatment and no computer or internet access without probation approval; Kocher repeatedly refused or failed to complete treatment and violated restrictions on sexually explicit material.
- In 2015–2017, incidents included possession of explicit images, discovery of an external hard drive, use of employer computers to access sexually explicit sites, termination from employment, and an FBI exam of workplace computers showing numerous searches and downloaded images (some unrecovered devices suggested possible additional material).
- Probation filed an amended petition alleging violations; at the revocation hearing Kocher admitted two Grade C violations (failure to participate in treatment and accessing sexually stimulating material). Guideline range for revocation was 3–9 months; maximum statutory revocation term was 24 months.
- The government requested 24 months; defense asked for 9 months, arguing no evidence of child pornography on the submitted computers and Kocher’s lack of physical sexual offenses. The district court imposed 24 months, stating (among other things) that a “crime is committed.”
- Kocher appealed, arguing the sentence was substantively unreasonable and based on an unfounded factual finding that he committed a new crime (viewing child pornography) and that the court failed to properly apply § 3553(a); the Eighth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court relied on a clearly erroneous factual finding (that Kocher committed a new crime) to justify upward variance | Kocher: district court’s “crime is committed” comment shows it found he viewed child pornography despite no record evidence | Government/District Court: comment referred to admitted supervised-release violations and the underlying conviction/recidivism; record shows parties agreed there was no evidence of child pornography on submitted devices | Court: No procedural error; context and record contradict claim of an unstated finding of new criminal conduct; argument forfeited by defense counsel’s failure to seek clarification |
| Whether the district court adequately explained and considered § 3553(a) factors in imposing an above-guidelines revocation sentence | Kocher: court did not adequately explain its sentence or consider mitigating factors, producing an unreasonable sentence | Government: court reasonably relied on Kocher’s repeated noncompliance, failure to complete treatment, and public safety/recidivism concerns | Court: Explanation sufficient for meaningful appellate review; upheld broad sentencing discretion and affirmed sentence |
| Whether a 24-month revocation sentence was substantively unreasonable given the advisory range of 3–9 months | Kocher: 24 months is unduly harsh and greater than necessary | Government: repeated violations and treatment refusal justify a substantial upward variance to deter and incapacitate | Court: Not substantively unreasonable; consistent with authority upholding higher revocation sentences for recidivist violators |
Key Cases Cited
- United States v. Ryser, 883 F.3d 1018 (8th Cir. 2018) (district court may not base sentence on a clearly erroneous factual finding)
- United States v. Nelson, 453 F.3d 1004 (8th Cir. 2006) (upward revocation sentences may be warranted to deter and incapacitate recidivist violators)
- United States v. Rodriguez, [citation="668 F. App'x 114"] (5th Cir. 2016) (district court’s reference to "punishment" can be shorthand for penalty imposed for supervised-release violation)
- United States v. Malloy, [citation="343 F. App'x 149"] (8th Cir. 2009) (court did not rely on a new law violation when imposing an increased revocation sentence)
- Gall v. United States, 552 U.S. 38 (2007) (sentencing courts must provide sufficient explanation to permit meaningful appellate review)
- United States v. Feemster, 572 F.3d 455 (8th Cir. 2009) (appellate courts rarely reverse district courts for substantive unreasonableness absent unusual circumstances)