United States of America v. Jonathon Del Smith

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 25-2177
___________________________
United States of America
Plaintiff - Appellee
v.
Jonathon Del Smith
Defendant - Appellant
____________
Appeal from United States District Court
for the District of North Dakota - Eastern
____________
Submitted: February 11, 2026
Filed: June 26, 2026
[Unpublished]
____________
Before LOKEN, LAVENSKI R. SMITH, and STRAS, Circuit Judges.
____________
PER CURIAM.
Jonathon Del Smith pleaded guilty to illegally possessing firearms in violation
of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court sentenced him to 30
months’ imprisonment to run consecutive to an existing state court sentence. As part
of this sentence, the court also ordered Smith to undergo a psychosexual evaluation
while in prison. On appeal, Smith challenges the court’s decision to run the federal

-- 1 of 5 --

-2-
conviction consecutive to the state sentence. And he asserts that the district court
lacked authority to order the psychosexual evaluation. We reverse the psychosexual
evaluation directive but affirm the district court in all other respects.
In October 2022, Smith took a 16-year-old female to a motel in Devils Lake,
North Dakota. While there, the minor female sustained a gunshot wound in a likely
accidental shooting. Smith alerted authorities. Law enforcement arrived and, in
addition to the wounded teen, discovered two firearms. Smith acknowledged
ownership of the weapons. Law enforcement also found the bullet believed to have
been shot through the minor’s calf. Several other rounds of ammunition were found
as well.
Prior to this incident, Smith had been convicted, though not yet sentenced, for
an Idaho felony involving injury to a child in Lemhi County, Idaho. According to
the presentence report, Smith approached or followed three different minor females
leading to the state conviction:
Records indicate on or about September 22, 2021, a 13-year-old female
reported to law enforcement she had been crossing the street the
previous evening when a man, later determined to be the defendant,
pulled up beside her in his vehicle, stating that he needed to ask her a
question. When the female approached the vehicle, the defendant asked
her if she wanted to have sex, which she declined. The defendant
proceeded to offer her money in exchange for sex and followed the
female in his vehicle as she walked to her residence. On September 23,
2021, the female identified the defendant in a lineup of photographs
provided by law enforcement. On or about September 30, 2021, a
different minor female was walking home from school and was
followed by a man in a vehicle. This man was later identified as the
defendant. On or about October 4, 2021, a separate minor female was
walking home from school and was followed by a man in a vehicle. The
man stopped and asked if the minor would like a ride. The minor
declined. The minor later identified the man as the defendant in a lineup
of photographs provided by law enforcement.

-- 2 of 5 --

-3-
R. Doc. 41 ¶ 24. The Idaho state court ultimately sentenced Smith to a fixed and
determinate period of incarceration of two and one-half years followed by an
indeterminate period of custody of seven and one-half years.
Based on the firearms found at the hotel, a federal grand jury indicted Smith
on a charge of possession of firearms by a convicted felon under 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). Pursuant to a plea agreement, Smith pleaded guilty to
one count of being a felon in possession of a firearm. While in custody for this
offense, Smith sent additional sexually explicit text messages soliciting females for
sex.
At sentencing, the district court determined the appropriate Guidelines range
was 12 to 18 months’ imprisonment. Smith informed the court that he potentially
faced another five years in prison for the Idaho offense. Smith also expressed that
even though he had been in custody in North Dakota since September 2024, he
would not receive any credit for that time toward his federal sentence. Additionally,
Smith argued that in the Idaho charge, he had no physical contact with the minor but
“what he pled guilty to was causing mental anguish.” R. Doc. 55, at 9.
After a brief discussion with Smith, the court proceeded to announce its
sentence. The court analyzed the 18 U.S.C. § 3553(a) factors and applied them to
Smith. Specifically, the court relied on Smith’s offense conduct, his post-
incarceration solicitation, and the uncontested facts surrounding the Idaho offense
for consideration under § 3553(a). It then sentenced Smith to 30-months’
imprisonment, to run consecutive to the Idaho sentence. Of particular note, the
district court also required that Smith undergo a psychosexual evaluation with the
Bureau of Prisons (BOP), stating:
As a condition—as part of the sentence, Mr. Smith is ordered by
the [c]ourt to undergo a psychosexual evaluation through the Bureau of
Prisons at a facility to which he will be designated that does perform
psychosexual evaluations.

-- 3 of 5 --

-4-
The fifth special condition of supervised release shall be that Mr.
Smith shall comply with the results of the psychosexual evaluation that
is performed as a part of this sentence. He shall comply with the results
of the psychosexual evaluation that is performed as a part of this
sentence as a special condition of supervised release.
Id. at 33. Smith’s counsel objected to the conditions.
On appeal, the parties agree that the district court did not have authority to
order Smith to complete a psychosexual evaluation while incarcerated. The parties
are correct. District courts do not have the authority to order the BOP, as part of a
defendant’s sentence of imprisonment, to place a defendant at a particular prison or
to dictate the treatment programs in which a defendant may participate. See Tapia v.
United States, 564 U.S. 319, 330–31 (2011) (holding that a sentencing court cannot
require a particular prison placement or that a defendant participate in a particular
treatment program, but allowing that court to “recommend that the BOP place an
offender in a particular facility or program”). The district court erred by requiring
Smith to undergo a psychosexual evaluation as a part of his prison sentence.
Next, Smith argues that the sentence was substantively unreasonable. We
review “the substantive reasonableness of [an] above-Guidelines sentence . . . under
a ‘deferential abuse-of-discretion standard.’” United States v. Cutler, 87 F.4th 893,
896 (8th Cir. 2023) (quoting United States v. Feemster, 572 F.3d 455, 461 (8th Cir.
2009) (en banc)). “A district court abuses its discretion when it (1) fails to consider
a relevant factor that should have received significant weight; (2) gives significant
weight to an improper or irrelevant factor; or (3) considers only the appropriate
factors but in weighing those factors commits a clear error of judgment.” Feemster,
572 F.3d at 461 (citation modified).
Smith argues that the district court abused its discretion in selecting a 30-
month sentence and ordering that it run consecutively to the state sentence. Smith
contends that “the district court gave too little weight to the significance of the
interplay of Smith’s state and federal sentences.” Appellant’s Br. 19. Additionally,

-- 4 of 5 --

-5-
he alleges that “[t]he district court also gave too little weight to the impact of the
federal detainer on the time Smith served in Idaho prisons.” Id. at 20. He concludes
by arguing that “the district court gave too little weight to Smith’s relatively young
age, his background, and his limited criminal history.” Id.
We find no clear error of judgment or abuse of discretion by the court in
reaching its sentence. When considering a consecutive sentence, “a district court has
the discretion to impose a sentence concurrently or consecutively based on the same
§ 3553(a) factors as other sentencing decisions.” United States v. Becker, 636 F.3d
402, 408 (8th Cir. 2011) (relying on 18 U.S.C. § 3584). Generally, “[m]ultiple terms
of imprisonment imposed at different times run consecutively unless the court orders
that the terms are to run concurrently.” 18 U.S.C. § 3584.
Smith’s sentence is not substantively unreasonable. The district court knew
the factors that Smith points to, such as time previously served on the state sentence;
the interplay and timing of the two instances; as well as Smith’s age, background,
and criminal history. Based on the court’s awareness of these factors and Smith’s
related arguments, we “presume that the district court considered and rejected them.”
United States v. Wisecarver, 644 F.3d 764, 774 (8th Cir. 2011) (quoting United
States v. Johnson, 619 F.3d 910, 922 (8th Cir. 2010)). Giving “due deference to the
district court’s decision that the § 3553(a) factors, on a whole, justify the extent of
the variance,” we conclude that the district court did not abuse its discretion in
sentencing Smith to 30 months’ imprisonment. Feemster, 572 F.3d at 461–62
(quoting Gall v. United States, 552 U.S. 38, 51 (2007)).
For these reasons, we affirm in part, reverse in part, and remand for further
proceedings consistent with this opinion.
______________________________

-- 5 of 5 --