United States of America v. John Daniel Kopp, Jr.

United States Court of Appeals
For the Eighth Circuit
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No. 24-2541
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United States of America
Plaintiff - Appellee
v.
John Daniel Kopp, Jr.
Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Eastern
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Submitted: October 7, 2025
Filed: November 5, 2025
[Unpublished]
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Before SMITH, BENTON, and KELLY, Circuit Judges.
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PER CURIAM.
John Kopp Jr. appeals his 405-month concurrent sentence after he pleaded
guilty to two counts of production of child pornography, in violation of 18 U.S.C.
§ 2251(a) and (e). Kopp argues that the district court committed plain error by
imposing concurrent 405-month prison terms, both of which exceed the 30-year
statutory maximum. We agree and remand for resentencing.

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I. Background
Kopp received cell-phone communications from an Iowa woman, A. Knight,
containing nude images of her two minor daughters. Kopp was charged with five
counts, including counseling and inducing another on March 29, 2021, to induce
Minor Victim 1 (MV1) to engage in the lascivious exhibition of the genitals or pubic
area for the purpose of producing a visual depiction, using materials that had been
shipped in interstate commerce, including a cellular telephone, in violation of 18
U.S.C. § 2251(a) and (e) (Count 2); and counseling and inducing another on April
10, 2021, to induce MV1 to engage in the lascivious exhibition of the genitals or
pubic area for the purpose of producing a visual depiction, using interstate commerce
materials, including a cellular telephone, in violation of 18 U.S.C. § 2251(a) and (e)
(Count 3). Pursuant to a written agreement, Kopp pleaded guilty to Counts 2 and 3.
The district court accepted the plea.
The probation office prepared a presentence report (PSR) prior to sentencing.
It calculated a Guidelines range of 324–405 months’ imprisonment, with a statutory
range of 15–30 years on the counts of conviction, to be followed by supervised
release of 5 years to life. See 18 U.S.C. § 2251 (“Any individual who violates, or
attempts or conspires to violate, this section shall be fined under this title and
imprisoned not less than 15 years nor more than 30 years . . . .”). Neither party
objected to the PSR. In its sentencing memorandum, the government recommended
that the district court impose a prison term within the advisory Guidelines range.
At sentencing, the parties reiterated that there were no factual or legal
objections to the PSR, and the district court adopted the PSR in its entirety. Defense
counsel asked the court to sentence Kopp to the mandatory minimum of 15 years’
imprisonment. Counsel pointed out that Kopp’s offense conduct was unusual in that
he possessed zero images of child pornography other than the eight images that he
received from Knight. Counsel also noted Kopp’s lack of criminal history; his lack
of socialization, particularly during COVID; and his contention that he would never
have touched the minor victims but instead was trying to prevent Knight from letting

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someone else abuse her daughters by stringing her along. During Kopp’s allocution,
he disavowed any intent to harm Knight’s children and stated that he only pretended
to have a sexual interest in them. The government requested a 405-month sentence,
citing the duration of Kopp’s conduct, the implausibility of his excuse for it, and the
vulgarity of his text conversations with Knight.
The district court thereafter rejected Kopp’s explanation that he was trying to
protect the victims because he never contacted law enforcement, considered the 18
U.S.C. § 3553(a) factors, and commended Kopp on his lack of criminal history. It
then stated that the nature and circumstances of the offenses were such that a “top-
of-[G]uideline[s] sentence of 405 months’ imprisonment” was appropriate to reflect
the seriousness of the offense, to promote respect for the law, and to provide just
punishment. R. Doc. 72, at 28. The court’s “individualized assessment” of the facts
resulted in its conclusion “that 405 months is sufficient but not greater than
necessary to satisfy the goals that are set forth in section 3553(a)(2).” Id. The district
court sentenced Kopp to concurrent terms of 405 months’ imprisonment and 5 years
of supervised release.
II. Discussion
On appeal, Kopp argues that the district court plainly erred by imposing
concurrent 405-month prison terms, both of which exceed the 30-year statutory
maximum.1 He requests that this court vacate his sentence and remand for
resentencing.
As Kopp concedes, because he failed to object to this sentencing error, we
review for plain error. See United States v. Williams, 910 F.3d 1084, 1094 (8th Cir.
2018) (“[The defendant] did not raise any objection before the district court
regarding this sentencing error; we thus review this argument for plain error.”). “To
1 Counsel for Kopp originally submitted a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), and a motion to withdraw. We denied the motion
to withdraw and ordered supplemental briefing on whether the sentence exceeding
the statutory maximum was plain error.

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prevail on a claim of plain error, a defendant must establish (1) error, (2) that the
error was plain, and (3) that the error affected his substantial rights. A defendant’s
substantial rights are affected where the error prejudicially influenced the outcome
of the district court proceedings.” Id. (citation modified). When a defendant asserts
plain sentencing error, he “must show a reasonable probability, based on the
appellate record as a whole, that but for the error he would have received a more
favorable sentence.” Id. (citation modified). Once a “defendant successfully
establishes these three requirements, we may notice the error but only if it seriously
affects the fairness, integrity, or public reputation of judicial proceedings.” Id.
(citation modified).
Here, the government concedes that “the district court committed error that
was plain by sentencing Kopp to over the statutory maximum on each count.”
Appellee’s Br. at 5. Nonetheless, it argues that “because the total sentence was not
over the combined statutory maximums for both counts, Kopp’s substantial rights
were not affected, and the error did not seriously affect the fairness, integrity, or
public reputation of the judicial proceeding.” Id. (emphasis added). The government
contends that Ҥ 2251(a) and 2251(e) will only allow a maximum sentence of 360
months’ imprisonment”; as a result, “the Sentencing Guidelines would have directed
the district court to divide the total term of imprisonment among more than one
count, with the sentence for each count to run consecutively to the extent necessary
to achieve the total sentence prescribed.” Id. at 9 (citing U.S.S.G. 5G1.2(d) (“If the
sentence imposed on the count carrying the highest statutory maximum is less than
the total punishment, then the sentence imposed on one or more of the other counts
shall run consecutively, but only to the extent necessary to produce a combined
sentence equal to the total punishment. In all other respects, sentences on all counts
shall run concurrently, except to the extent otherwise required by law.”)). The
government asks us to exercise our “discretion to modify the judgment without a
remand” by running the sentences partially consecutively, but it does not suggest
how we should do this. Id. (citing United States v. Wallette, 81 F. App’x 616, 618
(8th Cir. 2003) (unpublished per curiam); United States v. Pagel, 97 F. App’x 58, 58
(8th Cir. 2004) (unpublished per curiam); 21 U.S.C. § 2106).

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We have “previously held that, if the sentence for one count exceeds the
statutory maximum for that count, remand and re-sentencing is unnecessary where
the same sentence could be lawfully imposed on another count.” Williams, 910 F.3d
at 1094 (citing United States v. Bossany, 678 F.3d 603, 606–07 (8th Cir. 2012)
(holding district court’s error in imposing a 90–month sentence for conspiracy,
which exceeded the 60–month statutory maximum, did not affect defendant’s
substantial rights by prejudicially influencing the outcome of the district court
proceedings, and, thus, the error was not plain; regardless of the error, the defendant
would have been sentenced to 90 months’ imprisonment because the court imposed
an identical prison term for defendant’s conviction for money laundering, which had
a 240–month maximum)). To prove that a defendant’s substantial rights were
affected by the court imposing a sentence exceeding the statutory maximum for a
particular count, the defendant must “show that, but for the sentencing error, the
district court could not have imposed the same total punishment.” Id. at 1095. A
defendant cannot satisfy this standard if “the court legally imposed that sentence on
another count.” Id. (quoting Bossany, 678 F.3d at 606–07).
On this record, however, we agree with Kopp “that remand is necessary to
allow the district court to reconfigure the sentencing plan to ensure that it remains
adequate to satisfy the § 3553(a) sentencing factors.” Id. (citation modified). Kopp’s
concurrent 405-month prison terms both exceed the statutory maximum. See United
States v. Lugo-Barcenas, 57 F.4th 633, 636 (8th Cir. 2023) (noting that an illegal
sentence ordinarily includes sentence that exceeds statutory maximum). Even if the
same sentence could be imposed on remand, there is no lawfully imposed concurrent
prison term to negate the need for resentencing. Cf. Williams, 910 F.3d at 1095. The
district court concluded that an appropriate sentence was “a top-of-[G]uideline[s]
sentence of 405 months’ imprisonment.” R. Doc. 72, at 28. It also indicated that 405
months’ imprisonment was “sufficient but not greater than necessary to satisfy the
goals” of sentencing. Id. These statements indicate that the district court might “have
imposed a different sentence” for the two counts. Williams, 910 F.3d at 1095. We

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therefore remand to the district court to determine an appropriate total sentence as it
sees fit.
III. Conclusion
Accordingly, we vacate Kopp’s sentence and remand to the district court for
resentencing.
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