United States Court of Appeals
`For the Eighth Circuit
`___________________________
`
`No. 22-2320
`___________________________
`
`United States of America
`
` Plaintiff - Appellee
`
`v.
`
`Joshua Brown
`
` Defendant - Appellant
`____________
`
`Appeal from United States District Court
`for the Western District of Arkansas - Fayetteville
`____________
`
`Submitted: April 10, 2023
`Filed: July 13, 2023
`[Unpublished]
`____________
`
`
`Before LOKEN, SHEPHERD, and KELLY, Circuit Judges.
`____________
`
`
`PER CURIAM.
`
`Joshua Brown pled guilty to two counts of production of child pornography
`
`pursuant to a written plea agreement. The district court calculated the United States
`Sentencing Guidelines (USSG) base offense level for each count as 32. Several
`enhancements applied, including enhancements because the videos depicted a minor
`and involved sexual activity with a minor. The district court concluded that the
`
`

`

`combined offense level on both counts was 43 and calculated Brown’s criminal
`history as category I, resulting in an advisory Guidelines sentence of life
`imprisonment followed by a term of supervised release of five years to life.
`However, the statutory maximum term of imprisonment for each count was 360
`months, resulting in an advisory Guidelines sentence of 720 months in total. After
`discussing the 18 U.S.C. § 3553(a) factors and hearing argument of counsel and
`allocution from Brown, the court sentenced Brown to a term of imprisonment of 360
`months on each count but with 240 months of the sentence on Count Two to run
`consecutively with the rest running concurrently, for a total effective term of 600
`months’ imprisonment to be followed by 25 years of supervised release. The district
`court also imposed several special conditions of supervised release, including
`participation in a sex-offense-specific treatment program (Special Condition 6) and
`submission to periodic polygraph testing (Special Condition 7). Brown objected to
`Special Condition 7, which the district court overruled. Brown appeals Special
`Condition 7 and the substantive reasonableness of his sentence. Having jurisdiction
`under 28 U.S.C. § 1291, we affirm in part and remand.
`
`In this appeal, Brown alleges that the terms of Special Condition 7 as
`
`announced by the district court in open court conflicts with the terms of Special
`Condition 7 as set forth in the written judgment. At sentencing, the district court
`stated:
`
`
`Number seven, the defendant shall be required to submit to periodic
`polygraph testing at the discretion of the United States Probation Office
`as a means of participating in treatment programming.
`
`R. Doc. 60, at 64 (emphasis added). The written judgment states:
`
`
`7. The defendant shall be required to submit to periodic polygraph
`testing at the discretion of the probation office as a means to ensure
`that he is in compliance with the requirements of his supervision or
`treatment program.
`
`
`
`
`-2-
`
`

`

`R. Doc. 50, at 5 (emphasis added). Brown asks us to strike the terms in the judgment
`that are broader than the district court’s oral pronouncement. The United States
`argues that there is no conflict.
`
`“‘The oral pronouncement by the sentencing court is the judgment of the
`
`court,’ and, ‘[t]o the extent there is any conflict between the district court’s oral
`announcement of the special condition at sentencing and its written judgment, the
`oral sentence controls.’” United States v. Mays, 993 F.3d 607, 622 (8th Cir. 2021)
`(alteration in original) (citations omitted). Nevertheless, “if a district court’s written
`judgment is ‘consistent’ with its discernible intent in the oral pronouncement and
`simply ‘clarified’ an ‘imprecisely’ pronounced special condition, there is no conflict
`and we may treat the written judgment as operative.” Id. (citation omitted).
`
`We conclude that the terms of Special Condition 7 as set forth in the written
`
`judgment conflict with the terms as orally announced by the district court at
`sentencing. At sentencing, the district court announced the condition of periodic
`polygraph testing only “as a means of participating in treatment programming.”
`Accordingly, it appears that the “discernible intent” of the district court at sentencing
`was that Special Condition 7 was narrowly tailored to Brown’s treatment program.
`Id. The written judgment, however, is broader, stating that a purpose of the
`requirement of periodic polygraph testing is to “ensure that [Brown] compli[es] with
`the requirements of his supervision,” and is not limited to ensuring that Brown
`complies with his treatment program. “When such conflicts exist, the portion of the
`written judgment ‘that is broader than the oral version is void.’” Id. (citation
`omitted). In such a circumstance, the judgment must be remanded to the district
`court with instructions to “harmonize the written condition with the oral sentence.”
`United States v. James, 792 F.3d 962, 972 (8th Cir. 2015). Such a remand is
`appropriate in this case.
`
`Next, Brown argues that his sentence is substantively unreasonable. We
`
`review the substantive reasonableness of a sentence for an abuse of discretion.
`United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc). “A district
`-3-
`
`
`
`

`

`court abuses its discretion and imposes an unreasonable sentence when it fails to
`consider a relevant and significant factor, gives significant weight to an irrelevant or
`improper factor, or considers the appropriate factors but commits a clear error of
`judgment in weighing those factors.” United States v. McDaniels, 19 F.4th 1065,
`1067 (8th Cir. 2021) (citation omitted). In this case, the district court specifically
`stated that it was considering the 18 U.S.C. § 3553(a) factors and sentenced Brown
`to a total of 600 months’ imprisonment, below the Guidelines sentence of 720
`months. Accordingly, the sentence is afforded a presumption of reasonableness and
`it is “nearly inconceivable” that it constitutes an abuse of discretion. United States
`v. Bevins, 848 F.3d 835, 841 (8th Cir. 2017). Brown asserts that the district court
`did not give adequate weight to certain mitigating factors including his pending state
`charges, that he did not distribute the images he produced, and his lack of a criminal
`record. However, all of these facts were set forth in the Presentence Report and were
`argued by Brown’s attorney at sentencing. Thus, we presume that the district court
`considered these factors. United States v. Keating, 579 F.3d 891, 893 (8th Cir.
`2009). Further, the district court “need not specifically respond to every argument
`made by the defendant.” United States v. Ballard, 872 F.3d 883, 885 (8th Cir. 2017)
`(citation omitted).
`
`Brown also asserts that the sentence is greater than necessary and creates a
`
`disparity, pointing to a similar case in which the defendant received the same
`sentence under, allegedly, more aggravating circumstances. However, the district
`court “addressed and distinguished” that case at sentencing, United States v.
`Williams, 934 F.3d 804, 809 (8th Cir. 2019), while also recognizing the difficulties
`of crafting a proportionate sentence.
`
`“Where the district court in imposing a sentence makes ‘an individualized
`
`assessment based on the facts presented,’ addressing the defendant’s proffered
`information in its consideration of the § 3553(a) factors, such sentence is not
`unreasonable.” Id. (citation omitted). We find no abuse of discretion in the sentence
`imposed in this case.
`
`
`
`
`-4-
`
`

`

`Therefore, we remand Special Condition 7 to the district court with
`
`instructions to harmonize the written condition with the oral pronouncement of the
`condition. The judgment of the district court is otherwise affirmed.
`______________________________
`
`
`
`
`
`-5-
`
`