171370P.pdf   05/30/2018  United States  v.  Donald Harvey
   U.S. Court of Appeals Case No:  17-1370
   U.S. District Court for the District of Nebraska - Omaha   
   [PUBLISHED] [Loken, Author, with Beam and Kelly, Circuit Judges] 
   Criminal case - Sentencing. For the court's prior opinion directing the 
   district court to vacate either defendant's conviction for receipt of 
   pornography or his conviction for possession, see United States v. Harvey, 
   829 F.3d 586 (8th Cir. 2016), relying on Ball v. United States, 470 U.S. 
   856 (1985). On remand the district court vacated the lesser-included count 
   for possession of child pornography and again imposed a 74-month sentence. 
   The district court did not abuse its discretion when it denied defendant's 
   motion to produce PSRs for all cases in the district involving possession 
   or receipt of child pornography as this court had held that sentencing 
   practices of one district court judge are not a reference point for other 
   judges, and production of the materials would violate longstanding 
   judicial policies protecting the confidentiality of such information; the 
   greater weight of authority in situations with a greater offense and a 
   lesser-included offense is to vacate the lesser-included offense and the 
   court did not abuse its discretion by vacating the possession count; the 
   district court may disregard the child pornography guidelines on policy 
   grounds but is not required to do so; the district court provided adequate 
   explanation for its sentencing decision and the sentence was not 
   substantively unreasonable.