United States v. Joshua Louderback

Filing

PER CURIAM OPINION FILED - THE COURT: WILLIAM JAY RILEY, C. ARLEN BEAM and KERMIT E. BYE (UNPUBLISHED) [3852897] [11-1540]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________
No. 11-1540
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United States of America,

*
*
Plaintiff – Appellee,
*
* Appeal from the United States
v.
* District Court for the
* District of Nebraska.
Joshua Louderback,
*
* [UNPUBLISHED]
Defendant – Appellant.
*
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Submitted: November 14, 2011
Filed: November 25, 2011
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Before RILEY, Chief Judge, BEAM and BYE, Circuit Judges.
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PER CURIAM.
Following his guilty plea to sexual exploitation of minors in violation of 18
U.S.C. § 2252, Joshua Louderback was sentenced by the district court1 to thirty-three
months’ imprisonment and three years’ supervised release. Shortly after commencing
his term of supervised release on January 2, 2009, Louderback accessed child
pornography while he was an inmate at a federal half-way house. On December 4,
2009, the district court revoked Louderback’s supervised release and imposed a new
term of thirty-six months’ supervision, with ten days of intermittent custody over five
1

The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.

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consecutive weekends. On May 13, 2010, Louderback’s probation officer filed a
petition for offender under supervision alleging Louderback again violated the terms
of his supervised release by possessing child pornography. As a result of the same
incident, Louderback was indicted in federal court in a separate case with receiving
and possessing child pornography.
On March 1, 2011, Louderback pleaded guilty to the indictment and was
sentenced by the district court to 180 months’ imprisonment and lifetime supervised
release. Immediately thereafter, in this case, he admitted to violating the terms of his
supervised release by possessing child pornography, and the district court revoked his
supervised release. Despite the Guidelines range of 6 to 12 months’ imprisonment,
the district court sentenced Louderback to 24 months’ imprisonment, to run
consecutive to the 180-month sentence imposed by the district court in the earlier
criminal proceeding. On appeal, Louderback argues the court abused its discretion
by imposing an unreasonable sentence on the revocation of supervised release.
We review the substantive reasonableness of Louderback’s sentence under the
same deferential abuse-of-discretion standard applicable to initial sentencing
proceedings. United States v. Young, 640 F.3d 846, 848 (8th Cir. 2011). “A district
court’s decision to impose a consecutive or concurrent sentence is also reviewed for
reasonableness, similar to an abuse of discretion standard.” United States v. Benton,
627 F.3d 1051, 1055-56 (8th Cir. 2010) (internal citation omitted). “‘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.’” United States v. Shakal, 644 F.3d 642, 645 (8th
Cir. 2011) (quoting United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en
banc)).

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Louderback contends the district court abused its discretion by imposing a
consecutive, rather than a concurrent, sentence to the 180-month term of
imprisonment he received for the same conduct. He argues his Guidelines range in
the separate criminal case was enhanced based on that offense occurring while on
supervised release, and for receiving a second offense enhancement, and the court
failed to account for these factors when fashioning the twenty-four month sentence
in this case.
After careful review of the record, we conclude the district court did not abuse
its discretion.
Despite acknowledging Louderback’s “laudable efforts at
rehabilitation,” the district court concluded the seriousness of his repeated supervised
release violations demonstrated a need for the chosen sentence. The court also stated
it selected the sentence to promote respect for the law and provide just punishment
and deterrence. Finally, Louderback presented the district court with his arguments
with respect to the overlap between the instant sentence and the 180-month sentence,
but the court rejected this argument. See United States v. Wisecarver, 644 F.3d 764,
774 (8th Cir. 2011) (noting we presume the district court considered and rejected the
defendant’s arguments after they were presented at sentencing). Because the sentence
was within the statutory limit, and the district court discussed the relevant § 3553(a)
factors, we cannot say the district court abused its discretion. See Benton, 627 F.3d
at 1056 (rejecting a reasonableness challenge where “[t]he sentences were within
statutory limits, and the district court gave consideration to the appropriate factors,
sufficiently explained its reasoning, and acted well within its broad discretion in
formulating [the defendant’s] sentence.”) (internal citation omitted); United States v.
Kreitinger, 576 F.3d 500, 505 (8th Cir. 2009) (“The court adequately explained its
reasoning, and its decision to impose consecutive sentences was not unreasonable
given [the defendant’s] recidivist tendencies.”).
We affirm.
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