United States of America v. Jay Don Gifford

United States Court of Appeals
For the Eighth Circuit
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No. 19-3768
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Jay Don Gifford
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Western District of Arkansas - Ft. Smith
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Submitted: December 14, 2020
Filed: March 19, 2021
[Published]
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Before SMITH, Chief Judge, LOKEN and MELLOY, Circuit Judges.
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PER CURIAM.
Jay Don Gifford pleaded guilty to producing child pornography under 18
U.S.C. § 2251 and to committing a felony against a minor while being a registered

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sex offender under 18 U.S.C. § 2260A. The district court1 sentenced Gifford to 300
months’ imprisonment for the production conviction and 120 months’ imprisonment
for the § 2260A conviction, running consecutively. The district court also imposed
life terms of supervised release for both counts. Gifford challenges the substantive
reasonableness of his total imprisonment and the imposition of a life term of
supervised release for the § 2260A conviction. We affirm the district court’s sentence.
I. Background
In 2011, Gifford was convicted of a sex offense against a two-year-old child
and was required to register as a sex offender. In October 2018, federal law
enforcement received a tip that Gifford had uploaded 90 videos of suspected child
pornography.
At the time, Gifford was living with his mother. When law enforcement arrived
at the house and informed Gifford’s mother they were looking for him, she took them
to Gifford’s room. Gifford gave permission for law enforcement to search his room,
and he gave them two cellphones, two memory cards, and a laptop. While talking
with law enforcement, Gifford told them that he viewed child pornography on his
cellphone and laptop and showed them multiple images and videos he had saved on
his electronic devices.
Some of the child pornography featured Gifford with two minor girls. One was
ten years old; the other was seven years old. The two girls were the daughters of a
couple that lived with Gifford and his mother. The videos and pictures contained
sexually explicit images involving the two girls, including nude and partially nude
pictures of the ten-year-old, video of Gifford inappropriately touching the girls over
their clothes, video of the girls touching Gifford’s genitals, and video of Gifford
1The Honorable P.K. Holmes, III, United States District Judge for the
Western District of Arkansas.
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rubbing his penis on the girls. Also, a forensic examination of Gifford’s electronic
devices found over 10,000 images and 1,300 videos of child pornography and over
1,000 saved internet addresses related to child pornography.
The government brought charges against Gifford for production of child
pornography and commission of a sex offense against a minor while being registered
sex offender. After the indictment, Gifford underwent a psychiatric examination to
determine his competency for trial. Gifford was diagnosed with “Other Specified
Personality Disorder, with Schizoid and Dependent Traits” and “Persistent
Depressive Disorder (Dysthymia) with Anxious Distress.” Psychiatric Report at 8,
United States v. Gifford, No. 2:19-cr-20008-PKH-1 (W.D. Ark. 2019), ECF No. 20.
The report also indicated that his General Ability Index score, which is similar to an
IQ score, was 82 and “in the low average level of intelligence.” Id. at 7. But it
concluded that “these deficits appear[ed] unrelated to his present competency.” Id. at
11.
Gifford eventually pleaded guilty to violating § 2251 for production of child
pornography and § 2260A for commission of a sex offense against a minor by a
registered sex offender. At the sentencing hearing, counsel presented the above facts,
and the district court reviewed Gifford’s two letters of support, heard from the girls’
mother, and analyzed the sentencing factors in 18 U.S.C. § 3553(a).
The district court sentenced Gifford to 300 months’ imprisonment on the
§ 2251 conviction—a 60-month downward variance from the Sentencing Guidelines’
suggested range. For the § 2260A conviction, it sentenced Gifford to the statutorily
mandated 10 years’ imprisonment. The district court also sentenced Gifford to a life
term of supervised release on both counts. A life term of supervised release was
within the Guidelines range for the § 2251 conviction, but the statutory maximum for
the § 2260A conviction was three years of supervised release. Gifford appeals his
sentence.
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II. Discussion
Gifford makes two arguments on appeal. First, he argues that the district court
imposed a substantively unreasonable sentence, totaling 420 consecutive months of
imprisonment. Second, he argues that the district court erred by imposing a life term
of supervised release for his § 2260A conviction.
A. Substantive Reasonableness
We review the substantive reasonableness of Gifford’s sentence for an abuse
of discretion. United States v. Funke, 846 F.3d 998, 1000 (8th Cir. 2017). The district
court abused its discretion only if it (1) “fail[ed] to consider a relevant factor that
should have received significant weight,” (2) “g[ave] significant weight to an
improper or irrelevant factor,” or (3) “consider[ed] only the appropriate factors but
in weighing them commit[ted] a clear error of judgment.” Id. (quoting United States
v. Farmer, 647 F.3d 1175, 1179 (8th Cir. 2011)). Further, when a sentence is within
the Guidelines range, it is presumptively reasonable. Id. (quoting United States v.
Scales, 735 F.3d 1048, 1052 (8th Cir. 2013)). And when the sentence is below the
Guidelines range, “it is nearly inconceivable that the court abused its discretion in not
varying downward still further.” United States v. Elodio-Benitez, 672 F.3d 584, 586
(8th Cir. 2012) (quoting United States v. Moore, 581 F.3d 681, 684 (8th Cir. 2009)).
It is Gifford’s burden to overcome these presumptions. Funke, 846 F.3d at 1000.
During sentencing, district courts must consider
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need for the sentence imposed
[to provide just punishment, protect the public, and meet other criteria];
(3) the kinds of sentences available; (4) the kinds of sentence and the
sentencing range established . . . ; (5) any pertinent policy statement
. . . ; (6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of similar
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conduct; and (7) the need to provide restitution to any victims of the
offense.
18 U.S.C. § 3553(a).
Here, the district court sentenced Gifford to 300 months’ imprisonment for the
§ 2251 conviction—a 60-month downward variance from the Guidelines range. And,
as required by statute, the district court added 120 months’ imprisonment to that
sentence based on Gifford’s § 2260A conviction, running consecutively. According
to Gifford, the district court erred by improperly weighing the facts of his case and
ignoring important mitigating factors. Gifford’s list of unaccounted-for factors
include that he was 26 years old, has some intellectual deficits and mental-health
problems, has never lived independently, needs help managing finances, needs
reminders for personal care, and has had previous depressive periods. Gifford also
argues that the district court failed to account for sentencing disparities.
The district court, however, considered all these supposedly overlooked
factors. It expressly “recognize[d] . . . his history,” acknowledged that Gifford “has
some mental deficit, . . . a low IQ, and had some difficulty regarding his living
deficits,” and that “he’s 26 years [old].” Tr. of Sentencing Proceedings at 19–20,
United States v. Gifford, No. 2:19-cr-20008-PKH-1 (W.D. Ark. 2019), ECF No. 55.
But the district court found that “the seriousness of the offense” outweighed these
factors. Id. at 20. The district court considered Gifford’s case to be “one of the more
serious production of child pornography cases that [it] ha[d] seen.” Id. at 19. The
district court discussed how Gifford “took advantage” of living in a house with two
minor girls and recounted the quantity and types of child pornography stored on his
electronic devices. Id. It also considered Gifford’s prior sex offense against a minor,
which “apparently [did] not deter[]” Gifford. Id. at 21. Thus, it was “necessary [to]
. . . impose a sentence that protects the public from further crimes.” Id.
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The district court also accounted for potential sentencing disparities, noting it
was “required to avoid unwarranted sentence disparities.” Id. at 21. The district court
compared two of its previous production cases to Gifford’s. Both of those defendants
received sentences of at least 300 months’ imprisonment. Gifford’s length of
imprisonment exceeds the others because, unlike those defendants, Gifford also had
a § 2260A conviction, which mandated an additional 120 months be added to the end
of his other sentence. See § 2260A (stating that a defendant convicted under the
statute “shall be sentenced to a term of imprisonment of 10 years” and “[t]he sentence
imposed under this section shall be consecutive to any sentence imposed”).
District courts have “substantial latitude to determine how much weight to
give” each § 3553(a) factor. United States v. Peterson, 887 F.3d 343, 349 (8th Cir.
2018) (quoting United States v. Ford, 705 F.3d 387, 389 (8th Cir. 2013)). The district
court did not exceed its substantial latitude here.
B. Life Term of Supervised Release for § 2260A
Gifford did not object to the district court’s imposition of a life term of
supervised release for his § 2260A conviction. Thus, we review for plain error.
United States v. Hill, 889 F.3d 953, 954 (8th Cir. 2018). There is plain error when the
district court committed an error that was clear or obvious under current law and that
affected the party’s substantial rights. Id. Further, the error must “seriously affect[]
the fairness, integrity or public reputation of judicial proceedings” for us to overrule
the district court. Id. (quoting United States v. Schultz, 845 F.3d 879, 881 (8th Cir.
2017)).
The district court erred in imposing a life term of supervised release for
Gifford’s § 2260A conviction. A violation of § 2260A, is a Class C felony because
it carries a ten-year sentence. 18 U.S.C. § 3559(a)(3). And “the authorized terms of
supervised release . . . for a Class C . . . felony” is “not more than three years.” 18
U.S.C. § 3583(b)(2). Because a life term of supervised release exceeds three years of
supervised release, the district court committed an error that was plain.
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But the error did not affect Gifford’s substantial rights. An error affects
substantial rights if there is “a reasonable probability that, but for the error, the
outcome of the proceeding would have been different.” United States v. House, 923
F.3d 512, 515 (8th Cir. 2019) (quoting Rosales-Mireles v. United States, 138 S. Ct.
1897, 1904–05 (2018)). Gifford received two consecutively running life terms of
supervised release—one for his § 2260A conviction and the other for his § 2251
conviction. Even if the term imposed for his violation of § 2260A were eliminated,
Gifford would still be subject to a life term of supervised release for the § 2251
conviction. Consequently, there is no prejudice from the court’s error.
We held similarly in United States v. Williams, 910 F.3d 1084 (8th Cir. 2018).
In Williams, the district court sentenced the defendant to two sentences of 150
months’ imprisonment, running concurrently. Id. at 1094. In that case, the defendant
properly received a sentence of 150 months’ imprisonment for one conviction. Id. But
for the other conviction, 150 months’ imprisonment exceeded the 60-month statutory
maximum. Id. Although we acknowledged that the district court committed an error,
we held that the defendant’s substantial rights were not affected because he had not
“show[n] that the district court could not have sentenced him to the same total
punishment [i.e., 150 months’ imprisonment] because the district court ‘legally
imposed that sentence on a separate count.’” Id. at 1095 (quoting United States v.
Bossany, 678 F.3d 603, 607 (8th Cir. 2012)). Thus, the defendant “ha[d] failed to
demonstrate a reasonable probability that he would have received a more favorable
sentence, accounting for the correct statutory maximum.” Id.
We likewise affirm. Gifford has not shown a reasonable probability that the
district court would have given him a more favorable sentence had no error been
committed; the district court could have sentenced Gifford to a life term of supervised
release under § 2251, regardless of the error under § 2260A.
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III. Conclusion
Accordingly, we affirm Gifford’s sentence.
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