United States of America v. Jason Lathe Hutchinson

United States Court of Appeals
For the Eighth Circuit
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No. 24-2749
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United States of America
Plaintiff - Appellee
v.
Jason Lathe Hutchinson
Defendant - Appellant
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Appeal from United States District Court
for the District of North Dakota - Western
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Submitted: January 12, 2026
Filed: June 4, 2026
[Unpublished]
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Before SHEPHERD, KELLY, and STRAS, Circuit Judges.
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PER CURIAM.
Jason Hutchinson pleaded guilty to multiple child exploitation charges. He
appeals, asserting the district court improperly relied on disputed factual allegations
in determining his sentence. We agree.

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I.
In May 2024, Jason Hutchinson pleaded guilty to an 11-count Information,
each count charging him with child sexual exploitation or attempted child sexual
exploitation in violation of 18 U.S.C. § 2251(a), (e). In the Plea Agreement, the
government agreed to cap its sentencing recommendation at 405 months, and
Hutchinson was free to request a sentence as low as the statutory minimum of 180
months. At sentencing, neither party objected to calculation of the advisory
Guidelines range, but Hutchinson lodged objections to paragraphs 103–105 of the
Presentence Report. These paragraphs contained allegations that he had engaged in
forcible sexual conduct with a 10-year-old boy. The district court overruled the
objection and imposed an aggregate 450-month sentence of imprisonment with a
lifetime term of supervised release to follow.
II.
On appeal, Hutchinson contends the district court erred when it considered
unproven, objected-to factual allegations in the PSR at sentencing. “A district court
commits procedural error when it ‘bas[es] a sentence on unproven, disputed
allegations rather than facts.’” United States v. Dailey, 113 F.4th 850, 855 (8th Cir.
2024) (alteration in original) (quoting United States v. Richey, 758 F.3d 999, 1002
(8th Cir. 2014)). Hutchinson objected to three specific paragraphs in the draft PSR,
and he renewed his objection at sentencing. The government responded by telling
the court that the information should remain in the PSR, but it did not offer any
evidence to prove the allegations.
Confronted with Hutchinson’s objection, and without evidence to support the
disputed allegations, the district court had several options. It could, of course, sustain
the objection. See United States v. Willis, 168 F.4th 1119, 1122 (8th Cir. 2026) (“A
district court may not rely on objected-to portions of the PSR during sentencing
unless the government presents evidence to prove the disputed facts.” (citing Richey,
758 F.3d at 1002)). Or it could state on the record that a ruling on the objection is

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unnecessary, or that it would not consider the objected-to allegations in determining
a sentence. See Fed. R. Crim. P. 32(i)(3)(B) (“At sentencing, the court: [] must—for
any disputed portion of the presentence report or other controverted matter—rule on
the dispute or determine that a ruling is unnecessary either because the matter will
not affect sentencing, or because the court will not consider the matter in
sentencing[.]”). But if a defendant objects—as Hutchinson did here—the court may
not rely on the PSR as evidence to overrule the objection. See United States v. Sam,
170 F.4th 670, 673 (8th Cir. 2026) (“[The] PSR is not evidence and not a legally
sufficient basis for findings on contested issues of material fact.” (quoting United
States v. Cottrell, 853 F.3d 459, 463 (8th Cir. 2017))).
The government agrees a district court may not rely on unproven facts at
sentencing, and it does not meaningfully contest Hutchinson’s characterization of
the information in paragraphs 103–105 as unproven. It does, however, assert that
any error is harmless. To prevail, it has the “burden to show that the sentence would
have been the same” without the error. United States v. Wise, 17 F.4th 785, 789 (8th
Cir. 2021).
The disputed allegations were not used to calculate Hutchinson’s Guidelines
range, but that fact is not dispositive of our harmless error analysis. The conduct
underlying Hutchinson’s convictions was that he installed hidden cameras to
videotape minors in bathrooms over the course of approximately 30 years. None of
the charges—and none of the unobjected-to facts in the PSR—alleged that
Hutchinson engaged, or attempted to engage, in physical sexual conduct with any
minor. In this way, the allegations in paragraphs 103–105 were of a different, and
arguably more egregious, nature. Indeed, the government expressly relied on them
in support of its requested sentence, referring to the “hands-on offense against that
child” as “[o]n top of” the facts underlying the charges and the unobjected-to facts
in the PSR.
The district court did not specifically mention the allegations when explaining
its sentence, but the government urged that the conduct was “relevant” and “should

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be available to the [c]ourt to consider at the time of sentencing.” In overruling
Hutchinson’s objection, the court reasoned that the allegations “should be included
in the [PSR]” because they were in the “discovery material” and “consistent with
grooming that would typically occur” in this type of case. And before imposing
sentence, the court assured the parties that it had considered the “entire file” and “the
statements from counsel.” We may presume that the district court considered the
objected-to allegations and the government’s arguments about their relevance in
sentencing Hutchinson. See United States v. Keating, 579 F.3d 891, 893 (8th Cir.
2009) (“[W]here the district court heard argument from counsel about specific
§ 3553(a) factors, we may presume that the court considered those factors.” (citation
omitted)); United States v. Goodhouse, 81 F.4th 786, 793 (8th Cir. 2023) (presuming
the district court considered the arguments presented at sentencing).
“An error is harmless only if we are convinced that the error did not affect the
district court’s sentencing conclusion.” United States v. Wise, 17 F.4th 785, 789 (8th
Cir. 2021) (quoting United States v. Moody, 930 F.3d 991, 993 (8th Cir. 2019)). On
this record, we are not so convinced.
III.
We vacate Hutchinson’s sentence and remand for resentencing without
consideration of the objected-to allegations in the PSR.
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