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United States v. Smith

United States Court of Appeals, Eighth Circuit

August 3, 2015

United States of America, Plaintiff - Appellee
v.
Jody Eugene Smith, Defendant - Appellant

Submitted May 11, 2015

Appeal from United States District Court for the Eastern District of Missouri - St. Louis.

For United States of America, Plaintiff - Appellee: Robert F. Livergood, Assistant U.S. Attorney, U.S. Attorney's Office, Eastern District of Missouri, Saint Louis, MO.

For Jody Eugene Smith, Defendant - Appellant: Jeffrey Alex Goldfarb, Goldfarb Law Group, Clayton, MO.

Jody Eugene Smith, Defendant - Appellant, Pro se, Oklahoma City, OK.

Before WOLLMAN, SMITH, and BENTON, Circuit Judges.

OPINION

Per Curiam.

Jody Eugene Smith appeals the 720-month sentence that the district court[1] imposed for child pornography offenses. Smith argues that the district court procedurally erred and that the sentence is substantively unreasonable. We affirm.

I. Background

On August 25, 2013, Smith created an online photo-sharing account under the username " Friendofset." His user profile stated that he was " [a]lways looking for trades. You first of [course]. Also have he. Pics and vids. You first."

Several law enforcement agencies independently observed Smith's illicit online activities. On August 29, 2013, Smith traded naked pictures via the internet of his ten-year-old stepdaughter, M.S., with an undercover officer in Australia. On September 12, 2013, Smith offered to trade pornographic pictures of his step-daughter via the internet for purported pornographic pictures of an undercover Homeland Security agent's daughter. Also on September 12, Smith communicated with an undercover officer from the Florida Department of Law Enforcement, who represented that he had a 13-year-old daughter. Smith told the undercover Florida officer that he wanted to come to Florida during a planned vacation in November 2013 to engage in sexual relations with the officer's 13-year-old daughter and record the encounter on video. On September 17, 2013, Smith sent a sexually explicit picture of M.S. to the undercover Florida officer; later that same day, Smith sent another picture of M.S.'s genitals to the undercover Florida officer.

On September 19, 2013, law enforcement executed a valid search warrant for Smith's residence. During the subsequent search, Smith agreed to exit his residence and wait in a law enforcement vehicle. When informed of the reason for the search, Smith stated that the officers must be there because of " friendofset." He admitted that he had an ongoing history of viewing child pornography that started when he was a child and that the police were likely to find several hundred photos of child pornography on his computer. Officers indeed found over 800 photos and 144 video files on Smith's laptop depicting child pornography. Smith also stated that he used the internet to receive and trade child pornography files. Smith further admitted that he had several sexual encounters with his minor stepdaughter, R.S., since she was five years old, as well as touched the genitals of M.S. Finally, Smith admitted that he used pen cameras to take pictures and videos of both of his stepdaughters in the shower. Officers found the pen cameras, which had 11 video files and over 600 photos of R.S., M.S., and one of their friends as they were naked in the bathroom.

The government indicted Smith on four counts: Count I charged Smith with production of child pornography, in violation of 18 U.S.C. § 2251(a) and (e); Count II charged Smith with attempted production of child pornography, in violation of 18 U.S.C. § 2251(a) and (e); Count III charged Smith with receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2) and (b)(1); and Count IV charged Smith with the transportation of child pornography, in violation of 18 U.S.C. § 2252A(a)(1) and (b)(1). Smith eventually pleaded guilty to all four counts of the indictment pursuant to a plea agreement.

At the sentencing hearing, the district court indicated that it had read and reviewed the presentence investigation report (PSR) in preparation of the hearing. It next calculated the Guidelines offense level at 43 and Smith's criminal history category at II. The court calculated Smith's Guideline sentence to be life imprisonment. Smith later reminded the court that the parties' plea agreement stipulated " a [downward] variance of the total offense level by four levels to adequately reflect the seriousness of the offense." The court acknowledged the stipulation, stating that Smith was " correct in that. And with that, the range would be I think 292 to 365 months." Next, the parties offered brief oral argument regarding the appropriate sentence for Smith within ...


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