author: SHEPHERD, Circuit Judge.

text:
    Gyronne BUCKLEY, Plaintiff-Appellant v. Keith RAY, Individually and in his Official Capacity as Agent operating under the authority of the South Central Drug Task Force; Linda Card, Individually and in her Official Capacity as Agent operating under the authority of the South Central Drug Task Force; Richard Wiggins, “Rip” Individually and in his Official Capacity as Agent operating under the authority of the South Central Drug Task Force; Henry Morgan, Individually and in his Official Capacity as a Director of the South Central Drug Task Force; Brent Haltom, Individually and in his Official Capacity as a Director of the South Central Drug Task Force; Taylor King, Individually and in his Official Capacity as a Director of the South Central Drug Task Force; South Central Drug Task Force; Colonel J. R. Howard, Director, Arkansas State Police; Dustin McDaniel, Individually and in his Official Capacity as Attorney General of Arkansas; Brad Phelps, Individually and in his Official Capacity as Assistant Attorney General; Edward Armstrong, Individually and in his Official Capacity as Assistant Attorney General; Will Jones, Individually and in his Official Capacity as Assistant Attorney General; Jeff B. Sessions, in his Official Capacity as Attorney General of the United States, Defendants-Appellees
    No. 15-3656
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 21, 2016
    Filed: February 16, 2017

      Counsel who presented argument on behalf of the appellant was J. Thomas Sullivan, of Little Rock, AR. The following attorney also appeared on the appellant brief; Mark F. Hampton, of Little Rock, AR.

      Counsel who presented argument on behalf of Appellee Jeff B. Sessions was Nicolas Riley, of Washington, DC. Appearing on this brief were; Matthew M. Collette and Edward Himmelfarb, U.S. Department of Justice, Civil Division, Washington, DC. Counsel who presented argument on behalf of all other appellees was Colin Jorgensen, AAG, of Little Rock, AR.
    Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.

      . At the time this case was submitted, then-Attorney General Loretta E. Lynch was the defendant listed in this caption. Jeff B. Sessions has been automatically substituted for her under Rule 43(c)(2) of the Federal Rules of Appellate Procedure.

   SHEPHERD, Circuit Judge.

Gyronne Buckley brought this suit under 42 U.S.C. § 1983 alleging violations of his constitutional and statutory rights by the South Central Drug Task Force, several of its members and directors, certain Assistant Attorneys General of Arkansas, and the Attorney General of Arkansas. He also sought certification of a class action suit against the United States Attorney General on behalf of African-Americans in Arkansas subjected to equal protection and due process violations. The district court granted summary judgment to all defendants. We affirm.

I. Background

A. Facts

In May of 1999, Gyronne Buckley was convicted of two counts of delivery of a controlled substance and sentenced to life imprisonment, subsequently reduced to 56 years. His arrest and conviction were the result of a “controlled drug buy” operation orchestrated by the South Central Drug Task Force. Agents Keith Ray and Linda Card, investigators in the Drug Task Force, used a police informant to approach Buckley and buy rocks of crack cocaine from him. The informant later testified against Buckley at trial.

During his state post-conviction appeal, Buckley learned of a video-recorded, pretrial interview between the informant and Agents Ray and Card. The video showed Agent Ray coaching the informant on how to present his testimony in the trial against Buckley. The agents had never told state prosecutors about the existence of the video. Buckley’s attorney repeatedly sought to obtain the yideo during his post-conviction appeal. He was unsuccessful in doing so, and Buckley’s post-conviction appeal was likewise unsuccessful.

Buckley only received a copy of this video as the result of a United States District Court Order in his federal habeas proceeding. The district court then held 'his habeas petition in abeyance to permit Buckley’s return to state court. The Arkansas Supreme Court granted Buckley’s motion for leave to reopen his case based on the previously undisclosed video. Buckley alleged that suppression of the video violated his due process rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The trial court agreed and vacated his conviction on November 1, .2010. The charges against him were dismissed by court order on December 6, 2010.

Buckley thereafter moved to have the record in his case sealed pursuant to Arkansas Code Annotated § 16-90-905. The Clark County Circuit Court ordered the record sealed on April 12, 2012. The ex-pungement statute, as it existed in 2012, stated that:

Any individual who has been charged and arrested for any criminal offense where the charges are subsequently nolle prossed or dismissed or the individual is acquitted at trial is eligible to have all arrest records, petitions, orders, docket sheets, and any other documents relating to the case expunged in accordance with the procedures defined by this subchapter and upon entry of an order of expungement may state that no such charges, arrest, and the resulting trial ever occurred.

Ark. Code Ann. § 16-90-906.

On March 9, 2013, Buckley filed a claim with the Arkansas State Claims Commission seeking compensation for his wrongful conviction and years of incarceration. The Arkansas General Assembly created the Claims Commission, which consists of five commissioners, two of whom must be attorneys. See id. § 19-10-201(a)(l). Each commissioner is appointed by the governor and confirmed by the senate. Id. § 19-10-201(a)(2). With limited exceptions, the Claims Commission has “exclusive jurisdiction over all claims against the State of Arkansas and its several agencies, departments, and institutions.... ” Id. § 19-10-204(a). Any party pursuing such a claim must file a complaint with the Commission; the State of Arkansas is designated as the respondent. See M. § 19-10-208(a). The commissioners then hold a public hearing, “giving the parties full opportunity for presentation of evidence, cross-examination of witnesses, and argument.” Id. § 19-10-210(b)(l). When the Commission issues a final decision on a claim, it supports that decision with specific findings of fact and conclusions of law. Id § 19-10-216(a)(l). “A decision of the Arkansas State Claims Commission may be appealed only to the General Assembly.” Id. § 19-10-211(a); see also Fireman’s Ins. Co. v. Ark. State Claims Comm’n, 301 Ark. 451, 784 S.W.2d 771, 775 (1990) (“The act creating the Claims Commission clearly creates it as an arm of the legislature, reporting solely to that body.”). The appeal is filed with the Commission, which then notifies the Arkansas Legislative Council of the appeal. Ark. Code Ann. § 19 — 10—211(c).

Prior to the Commission’s evidentiary hearing, Arkansas Assistant Attorneys General Brad Phelps, Edward Armstrong, and Will Jones accessed the records from Buckley’s trial. Armstrong and Jones then appeared before the Commission to represent the State’s interests. Armed with information gleaned from the sealed records, they argued that Buckley could not prove his actual innocence of the charges. After the hearing, the Commission recommended Buckley receive $460,000 in compensation.

The State Attorney General’s office appealed the Commission’s decision, and the appeal was heard at a hearing of the Claims Review Subcommittee of the Arkansas Legislative Council. See id. § 10-3-313. Dustin McDaniel, then Arkansas’s Attorney General, appeared before the subcommittee in opposition to Buckley’s awarded compensation. He contended that Buckley had not established his innocence. McDaniel also referenced an audio tape of the controlled drug buy and claimed that Buckley used the phrase “killing Whitey” on the tape. McDaniel later admitted he erred in attributing those words to Buckley.

The subcommittee voted unanimously to deny Buckley compensation.

B. Procedural History

Buckley filed his original complaint on December 5, 2014. He subsequently filed an amended complaint on February 10, 2015. His amended complaint stated claims against three principal groups of defendants. First, he asserted § 1983 claims arising out of his wrongful conviction, naming the following defendants: the South Central Drug Task Force; Agents Ray and Card; their supervising agent, Agent Richard “Rip” Wiggins; directors of the Task Force Henry Morgan, Taylor King, and Brent Haltom; and the Director of the Arkansas State Police, Colonel J.R. Howard (collectively the “Law Enforcement Defendants”). The claims against the Law Enforcement Defendants pertain to the Brady violation committed by Agents Ray and Card in 1999. Buckley’s Brady claims against the Task Force, its directors, and the Director of the Arkansas State Police center on a failure to supervise Agents Ray and Card.

Second, Buckley asserted due process claims against Arkansas Attorney General McDaniel and Assistant Attorneys General Armstrong, Jones, and Phelps (collectively the “AG Defendants”). These due process claims arose out of the access and use of Buckley’s sealed trial records before the Claims Commission and legislative subcommittee. In addition, Buckley stated a state-law defamation claim against Attorney General McDaniel for his comments made to the legislative subcommittee.

Third, Buckley sought class certification for a suit naming the United States Attorney General as a defendant. The basis for this proposed class action lay in purported violations of equal protection and due process against African-American defendants in Arkansas by the state criminal justice system. Buckley requested an order enjoining the Attorney General from awarding federal money to Arkansas law enforcement agencies. Buckley also sought an order compelling the Attorney General to investigate claims of racial bias in the Arkansas criminal justice system.

The district court, in two separate orders, dismissed Buckley’s claims against all defendants. The first order addressed the claims made against the AG Defendants. The district court held that the AG Defendants were entitled to qualified immunity as to Buckley’s § 1983 claims against them. Alternatively, the court found that the defense of absolute quasi-judicial immunity applied. Regarding the state-law defamation claim against McDaniel, the district court ruled that the defamatory statement, made in a judicial or quasi-judicial proceeding, was privileged. Additionally, the district court dismissed all claims against Assistant Attorney General Phelps for failure to set forth any facts that could support a claim of entitlement to relief.

In the district court’s second order, it dismissed, claims against the Law Enforcement Defendants as barred by the statute of limitations. The court also dismissed sua sponte all claims against the United States Attorney General on the same grounds. BucMey now appeals both of the district court’s dismissal orders.

A district court’s order granting a motion to dismiss is reviewed de novo. Mountain Home Flight Serv., Inc. v. Baxter Cnty., 758 F.3d 1038, 1042 (8th Cir. 2014). We construe all reasonable inferences in favor of Buckley as the nonmov-ing party. Id.

II. Due Process Claims Against the AG Defendants

Buckley alleges that the AG Defendants violated his due process rights when they accessed his sealed trial records. His amended complaint reads, “Defendants McDaniel, Phelps, Armstrong and Jones violated Plaintiffs right to due process of law under the Fourteenth Amendment when they violated Arkansas law in referring to and relying on matters previously subject to the expungement of records arising from the prosecution and conviction of [Buckley].” (J.A. 64.) The complaint further avers that the AG Defendants violated his “right to rely on the statutory provisions protecting him from unlawful disclosures” of his sealed records. (J.A. 67.) The AG Defendants freely admit that they reviewed Buckley’s trial records and relied on them during their testimony before the Claims Commission. (Appellee Br. 12.)

The district court interpreted Buckley’s amended complaint to contain two separate claims against the AG Defendants in their individual capacities. First, accessing the expunged trial records constituted a substantive due process violation under the Fourteenth Amendment. Second, the AG Defendants violated Buckley’s right to procedural due process safeguards, since the Arkansas expungement statute allegedly created a constitutional right. Regarding Buckley’s first claim, the district court explained, “Actionable substantive due process claims involve a level of ... abuse of power ... so brutal and offensive that [they do] not comport with traditional ideas of fair play and decency.” Avalos v. City of Glenwood, 382 F.3d 792, 800 (8th Cir. 2004) (alteration in original) (citations and internal quotation marks omitted). The court then held that accessing Buckley’s sealed records failed to fall within the scope of a § 1983 claim, citing without comment our decision in Hart v. City of Little Rock, 432 F.3d 801 (8th Cir. 2005). Turning to Buckley’s second claim, the district court noted that Buckley had failed to offer any caselaw holding that the Arkansas expungement statute created a cause of action, much less a constitutional right. The district court therefore found that qualified immunity protected the AG Defendants.

A. Qualified Immunity

Qualified immunity shields officers from liability “unless [their] conduct violates a cléarly established constitutional or statutory right of which a reasonable person would have known.” Shekleton v. Eichenberger, 677 F.3d 361, 365 (8th Cir. 2012) (internal quotation marks omitted) (quoting Brown v. City of Golden Valley, 574 F.3d 491, 495 (8th Cir. 2009)). “Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments.... ” Ashcroft v. al-Kidd, 563 U.S. 731, 743, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011). “The determination of whether an officer is entitled to qualified immunity requires consideration of the ‘objective legal reasonableness’ of the officer’s conduct in light of the information he possessed at the time of the alleged violation.” Winters v. Adams, 254 F.3d 758, 766 (8th Cir. 2001) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 819, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).

Courts conduct a two-part inquiry to determine whether qualified immunity protects a government official from liability: (1) whether the facts taken in a light most favorable to Buckley make out a violation of a constitutional or statutory right; and (2) whether that right was clearly established at the time of the alleged violation. Truong v. Hassan, 829 F.3d 627, 630 (8th Cir. 2016). We have discretion in deciding which part of the inquiry to address first. Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).

B. Substantive Due Process Claim

The Fourteenth Amendment provides that “[n]o State shall ... deprive any person of life, liberty, or property, without due process of law.” U.S. Const, amend. XIV, § 1. “To establish a violation of substantive due process rights by an executive official, a plaintiff must show (1) that the official violated one or more fundamental constitutional rights, and (2) that the conduct of the executive official was shocking to the ‘contemporary conscience.’ ” Truong, 829 F.3d at 631 (quoting Flowers v. City of Minneapolis, 478 F.3d 869, 873 (8th Cir. 2007)). The “shocks-the-conscience” test presents a high bar for Buckley to reach. His claim against the AG Defendants must involve conduct “so severe ... so disproportionate to the need presented, and ... so inspired by malice or sadism ... that it amounted to a brutal and inhumane abuse of official power literally shocking to the conscience.” Id. (quoting Moran v. Clarke, 296 F.3d 638, 647 (8th Cir. 2002)). In a case such as this, in which actual deliberation was practical, Buckley must also prove that the AG Defendants acted with deliberate indifference to the effect their conduct would have on him. See Terrell v. Larson, 396 F.3d 975, 980-81 (8th Cir. 2005) (en banc). Determining whether state officials acted with deliberate indifference “demands an exact analysis of circumstances before any abuse of power is condemned as conscience shocking.” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 850, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998).

In his brief, Buckley presents the issue as a question of whether the AG Defendants acted within the realm of “fair play and decency.” (Appellant Br. 21 (citing Avalos, 382 F.3d at 800).) He contends that accessing and referencing his expunged criminal record constituted unfair play and indecency. This contention goes unsupported by any citation to caselaw or treatise. In effect, Buckley argues that the mere act of violating a state’s expungement statute amounts to a brutal and inhumane abuse of official power literally shocking to the conscience.

We cannot accept Buckley’s argument. Seeking compensation for time spent in prison, he had brought a claim to the Claims Commission. Buckley himself placed his conviction, and his underlying conduct, at issue in the Commission’s proceedings. The AG Defendants represented the State’s interests before the Commission. See Ark. Code Ann. § 25-16-702(a). As part of their representation, they accessed the records from Buckley’s 1999 conviction. They then used those records to argue before the Commission that Buckley had failed to show his actual innocence of the crimes. While the Commission did not agree, the legislative subcommittee ultimately did, and Buckley’s claim was denied.

None of the actions taken by the AG Defendants amount to a brutal abuse of power. Using the trial records of an individual seeking compensation for the time he spent in prison, when that individual has placed his conduct and conviction at issue, does not shock the conscience. The AG Defendants acted reasonably, particularly in light of Arkansas caselaw allowing the use of expunged records to impeach testimony when the actual innocence of the witness has not been shown. See Wal-Mart Stores, Inc. v. Regions Bank Trust Dept., 347 Ark. 826, 69 S.W.3d 20, 27-28 (2002). The Arkansas expungement statute offered Buckley a shield; but he asks to use it as a sword, commanding the AG Defendants to sit idly by and do nothing to defend the State before the Claims Commission. That is unreasonable. Since the AG Defendants’ conduct fails to shock the conscience, no substantive due process violation occurred. We next turn to Buckley’s procedural due process claim.

C. Procedural Due Process Claim

Buckley’s second claim against the AG Defendants alleges a violation of procedural due process. Buckley asserts that “these Defendants either knew or should have known that their actions in violating the terms of the liberty and privacy interests created by the Arkansas expungement statute would violate Buckley’s right to due process.” (Appellant Br. 26.) To state Buckley’s argument more clearly, the ex-pungement statute creates privacy and liberty interests entitled to procedural due process protection. The AG Defendants, according to Buckley, breached this protection when they accessed records from his expunged conviction without affording him due process. The expungement statute, therefore, serves as the basis for this cause of action, unlike Buckley’s substantive due process claim. Cf. Davis v. Scherer, 468 U.S. 183, 194 n.12, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984) (“Neither federal nor state officials lose their immunity by violating the clear command of a statute or regulation — of federal or of state law— unless that statute or regulation provides the basis for the cause of action sued upon.”).

“[Sjtate statutes may create liberty interests that are entitled to the procedural protections of the Due Process Clause of the Fourteenth Amendment.” Green v. Dormire, 691 F.3d 917, 921 (8th Cir. 2012) (alteration in original) (internal quotation marks omitted) (quoting Vitek v. Jones, 445 U.S. 480, 488, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980)). If a state statute has created a liberty interest, federal law establishes the minimum requirements of due process. Id.; Anderson v. Romero, 72 F.3d 518, 527 (7th Cir. 1995) (“[T]he source of the entitlement is a state statute; federal law merely protects him against having his entitlement taken away from him with-out due process of law.”).

Buckley fails to articulate any legally-cognizable liberty interest created by the Arkansas expungement statute. He contends that the Arkansas expungement statute creates “liberty and privacy interests.” But he offers no elaboration on what those interests may be, beyond his assertion that the statute “protect[s] him from unlawful disclosures” of his expunged records. We have previously analyzed the provisions of Arkansas’s expungement statute and held that they do not create a liberty interest. Eagle v. Morgan, 88 F.3d 620, 626 (8th Cir. 1996). At that time, we observed that the state legislature does not “possess the Orwellian power to permanently erase from the public record those affairs that take place in open court.” Id. Accordingly, Buckley had no state-created liberty interest for the AG Defendants to violate. With no other liberty interest identified, no constitutional violation could have occurred. We therefore affirm the district court’s ruling — qualified immunity protects the actions taken by the AG Defendants.

III. Defamation Claim Against Attorney General McDaniel

Buckley asserts a separate, state-law defamation claim against Attorney General McDaniel. This claim centers on the testimony McDaniel offered to the legislative subcommittee in which he claimed an audiotape existed of Buckley using the phrase “killing Whitey” during one of the controlled drug buys. Buckley claims McDaniel’s statement defamed him and he seeks damages of $920,000. We have diversity jurisdiction over this claim under 28 U.S.C. § 1332.

The district court dismissed the state-law claim against McDaniel because, it reasoned, McDaniel’s allegedly defamatory statement was privileged. ‘We may affirm on any basis supported by the record.” Green Tree Servicing, LLC v. DBSI Landmark Towers, LLC, 652 F.3d 910, 913 (8th Cir. 2011) (quoting Schoelch v. Mitchell 625 F.3d 1041, 1046 (8th Cir. 2010)). We hereby affirm the district court’s dismissal of the defamation claim on the alternative grounds of absolute legislative immunity.

Legislative immunity “attaches to all actions taken ‘in the sphere of legitimate legislative activity.’ ” Bogan v. Scott-Harris, 523 U.S. 44, 54, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998) (quoting Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 95 L.Ed. 1019 (1951)). The decision of a legislature on how to spend public money is, in its very nature, a legislative act. Accord Bogan, 523 U.S. at 55-56, 118 S.Ct. 966 (“a discretionary, policymaking decision implicating ... budgetary priorities” is a legislative activity). “A witness is absolutely privileged to publish defamatory matter as part of a legislative proceeding in which he is testifying or in communications preliminary to the proceeding, if the matter has some relation to the proceeding.” Restatement (Second) of Torts § 590A (1977); see also Valor Healthcare, Inc. v. Pinkerton, 620 F.Supp.2d 974, 980 (WD. Ark. 2009) (“Individuals must be able to testify to the legislature about matters of public concern without the prospect of a defamation claim.”). Attorney General McDaniel testified before the legislative subcommittee concerning a legislative matter. Therefore, we find that absolute legislative immunity protects his allegedly defamatory statement.

Buckley raises two objections to this conclusion: First, that the application of legislative immunity to Buckley’s claim contradicts warnings from the Supreme Court on the unjustified expansion of immunity theories in § 1983 litigation. His concern is unwarranted. Buckley’s defamation claim is a state-law claim brought under diversity jurisdiction and is not part of his § 1983 claims. Even if it were, the Supreme Court has already recognized the defense of absolute legislative immunity in § 1983 litigation. See Bogan, 523 U.S. at 49, 118 S.Ct. 966. Second, Buckley opines that such a ruling would permit legal officers of the state to defame anyone with impunity. This argument is without merit. Our ruling immunizes officials only in the limited context of testimony before a legislative body. It says nothing about the liability of officials for making defamatory statements in any other context.

IV. Claims Arising out of the 1999 Brady Violation

Several claims in Buckley's lawsuit, made individually and collectively against the Law Enforcement Defendants, relate to the Brady violation committed during his 1999 trial. He brought these claims under 42 U.S.C. § 1983 for violations of his rights to due process of law and equal protection under the Fourteenth Amendment. But the district court never reached the merits of these claims. Rather, it found that the applicable statute of limitations bars Buckley from proceeding against the Law Enforcement Defendants.

It is undisputed that the statute of limitations for Buckley to bring a § 1983 claim is three years. See Miller v. Norris, 247 F.3d 736, 739 (8th Cir. 2001) (Arkansas’s three-year statute of limitations for personal injuries applies to § 1983 claims). The district court held that Buckley’s conviction was the source of his injury. The court’s rationale rested on the observation that had Buckley been acquitted in his 1999 trial, there would have been no constitutional violation, since he would have suffered no damages. The statute of limitations, therefore, began to run on November 1, 2010 — when the trial court vacated his conviction due to the Brady violation. The limitations period ended on November 1, 2013, rendering Buckley’s December 5, 2014 suit time-barred.

Buckley objects to this holding because he remained in jeopardy of being tried again for the cocaine charges after November 1, 2010. Following the trial court’s vacation of Buckley’s conviction, prosecutors dismissed the charges against him by nolle prosequi on December 6, 2010. Under Arkansas law, “It is well settled that dismissal of a charge by nolle prosequi does not bar a subsequent prosecution for the same offense.” State v. Crawford, 373 Ark. 95, 281 S.W.3d 736, 739 (2008) (citing Ark. Code Ann. § 16-89-122). Both parties agree that Buckley escaped jeopardy only on December 6, 2011 — one year after the nolle prosequi dismissal of the charges against him. See Ark. Code Ann. § 16-90-1410. Buckley argues that he could not haye brought suit on his Brady claims until that day because to do so earlier would have risked a civil tort verdict calling into question a subsequent criminal conviction. See Heck v. Humphrey, 512 U.S. 477, 484, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). The district court’s ruling, under Buckley’s theory, raised this very possibility. He asserts that the statute of limitations, therefore, did not start running until December 6, 2011, thus placing his December 5, 2014 suit within the limitations period.

The key question before us is when does a cause of action under § 1983 for a Brady violation accrue? In Heck, the Supreme Court held that a cause of action for unconstitutional conviction, imprisonment, or other harms “caused by actions whose unlawfulness would render a conviction or sentence invalid,” does not arise until the underlying conviction has been “reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal ... or called into question by a federal court’s issuance of a writ of habeas corpus.” Id. at 486-87, 114 S.Ct. 2364. The Court created this rule, in part, to avoid parallel litigation where a civil verdict and criminal conviction, concerning the same transaction, contradict each other. Id. at 484, 114 S.Ct. 2364. The Supreme Court, however, has further clarified its Heck holding in Wallace v. Kato, 549 U.S. 384, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). In Wallace, the Court expressly refused to hold that “an action which would impugn an anticipated future conviction cannot be brought until that conviction occurs and is set aside.” Id. at 393, 127 S.Ct. 1091. Rath er, the Heck rule applies only when there exists a conviction or sentence that has not been invalidated. Id. Otherwise, the traditional rule holds: a cause of action accrues “when the wrongful act or omission results in damages.” Id. at 391, 127 S.Ct. 1091 (citations and internal quotation marks omitted).

The Supreme Court’s decision in Wallace controls Buckley’s claim. The trial court invalidated Buckley’s 1999 conviction on November 1, 2010. No extant conviction exists for his § 1983 claims to impugn. The possibility that the State may have re-tried and convicted him of the cocaine charges— “an anticipated future conviction” — does not implicate the Heck rule. See id. at 393, 127 S.Ct. 1091. Buckley directs the court to a number of decisions from other circuits for the proposition that “so long as success on [a § 1983 claim] would necessarily imply the invalidity of a conviction in the pending criminal prosecution, such a claim does not accrue so long as the potential for a judgment in the pending criminal prosecution continues to exist.” Smith v. Holtz, 87 F.3d 108, 113 (3d Cir. 1996); see also Wolfe v. Perry, 412 F.3d 707, 714 (6th Cir. 2005) (same); Covington v. City of New York, 171 F.3d 117, 124 (2d Cir. 1999) (same). But all of these cases came before the Supreme Court decided Wallace in 2007. In fact, the Third Circuit has expressly recognized that Wallace abrogated its decision in Smith. See Woodson v. Payton, 503 Fed.Appx. 110, 112 (3d Cir. 2012) (per curiam). We therefore do not find the cases cited by Buckley compelling or their rationale applicable.

The Brady violation committed against Buckley by the Law Enforcement Defendants caused him damage when he was convicted and incarcerated in 1999. The trial court vacated -his conviction on November 1, 2010. That is the date on which his cause of action accrued. The limitations period on Buckley’s claims, in accordance with Arkansas law, ended on November 1, 2013. His claims against the Law Enforcement Defendants, filed over a year later, are time-barred.

In the same order dismissing the claims against the Law Enforcement Defendants, the district court also dismissed Buckley’s claims against the United States Attorney General sua sponte. The court held that the claims against the Attorney General were barred by the statute of limitations, just as the claims against the Law Enforcement Defendants were. We affirm.

V. Conclusion

For the foregoing reasons, we affirm the opinion of the district court dismissing Gy-ronne Buckley’s claims.

      . The Honorable James M. Moody Jr., United States District Judge for the Eastern District of Arkansas.

      . Buckley was never able to locate or serve process on Agent Ray. The district court, therefore, dismissed, the claims against Ray on November 6, 2015.

      . Colonel J.R. Howard is no longer the Director of the Arkansas State Police. Colonel William J. Bryant was appointed as Director in January 2015.

      .The amended complaint named then-Attorney General Eric Holder as a defendant in his official capacity. Jeff B. Sessions has been automatically substituted for him pursuant to Rule 43(c)(2) of the Federal Rules of Appellate Procedure.

      . The district court dismissed the § 1983 claims against the AG Defendants in their official capacities because such claims are barred, either by the Eleventh Amendment or because in these capacities they are not "persons” for § 1983 purposes. See Murphy v. Arkansas, 127 F.3d 750, 754 (8th Cir. 1997). Buckley has not appealed this ruling by the district court.

      . Because qualified immunity applies, we do not address the district court's holding that quasi-judicial immunity also protects the AG Defendants. We also need not address the district court's dismissal of the claims against Assistant Attorney General Phelps for failure to set forth any facts that could raise a claim of entitlement to relief. Whatever actions, if any, Phelps may have taken regarding Buckley’s expunged record, they are protected by qualified immunity.

      . Buckley was a resident of the State of Texas at the time suit was brought. McDaniel is a resident of Arkansas.

      . We have previously held "that a district court sua sponte may dismiss a complaint under Rule 12(b)(6) as long as the dismissal does not precede service of process.” Smith v. Boyd, 945 F.2d 1041, 1043 (8th Cir. 1991). The district court noted that the Attorney General was served on April 6, 2015. The district court issued its order on September 28, 2015. In his brief, Buckley suggests that service of process was improperly completed according to Rule 4(i)(l)(A) of the Federal Rules of Civil Procedure. He cites no caselaw to support the proposition that improper service affects our holding in Smith. We therefore affirm the right of the district court to dismiss sua sponte the claims against the Attorney General.

      . Buckley argues in his reply brief that his claims against the United States Attorney General also included a request for injunctive relief as to ongoing acts of the Attorney General based on due process and equal protection concerns. These claims, according to Buckley, should not be dismissed on statute-of-limitations grounds. Though Buckley is correct on this narrow point, we hold that he does not have standing to seek injunctive relief on the claims asserted. See City of Los Angeles v. Lyons, 461 U.S. 95, 101-02, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). A plaintiff seeking injunctive relief must show the he “will again be wronged in a similar way.” Id. at 111, 103 S.Ct. 1660. The “threatened injury must be certainly impending to constitute injury in fact.” Clapper v. Amnesty Int'l USA,U.S. -, 133 S.Ct. 1138, 1147, 185 L.Ed.2d 264 (2013) (quoting Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990)). Buckley fails to show that future harm to him is certainly impending. Taking his allegations of racial bias and false testimony as true, he has not shown a likelihood of repetition. We therefore hold that Buckley lacks standing to seek injunctive relief from the United States Attorney General.


source: Caselaw Access Project

author: MURPHY, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee v. Adetokunbo Olubunmi ADEJUMO, Defendant-Appellant
    No. 15-3952
    United States Court of Appeals, Eighth Circuit.
    Submitted: December 14, 2016
    Filed: February 16, 2017

      Counsel who presented argument on behalf of the appellant was Jordan S. Kush-ner, of Minneapolis, MN.
    Counsel who presented argument on behalf of the appellee was Lola A. Velazquez-Aguilu, AUSA, of Minneapolis, MN.
    Before LOKEN, MURPHY, and KELLY, Circuit Judges.
   MURPHY, Circuit Judge.

Defendant Adetokunbo Adejumo pled guilty to bank fraud and aggravated identity theft. As part of his sentence he was ordered to pay restitution of almost $500,000, and he appeals. We vacate the restitution order.

I.

Adejumo was indicted in 2011 on 15 counts charging a scheme to defraud banks and bank customers by use of stolen identities, stolen and fraudulently created bank accounts, counterfeit checks, and fraudulently obtained credit card accounts. He pled guilty to one count of aiding and abetting bank fraud and one count of aiding and abetting aggravated identity theft. His plea agreement required Adejumo to make restitution payments to the victim of his crime, the amount to be determined by the court at sentencing. At sentencing in August 2012, the court ordered Adejumo to pay restitution but did not state the amount.

In August 2013 the government moved for restitution in the amount of $1.1 million. Its motion was granted without Ade-jumo having received notice of it. He subsequently appealed the restitution award, and we reversed after concluding that the procedure required by 18 U.S.C. § 3664 had not been followed and that the government had not presented sufficient evidence to support the award. United States v. Adejumo, 777 F.3d 1017 (8th Cir. 2015). We remanded to the district court for a restitution hearing.

After an October 2015 hearing, the district court ordered Adejumo to pay restitution to four banks in the total amount of $495,803.86. Adejumo appeals, arguing that the court lacked jurisdiction to order restitution because the government had submitted its restitution request a year after sentencing. He also challenges the sufficiency of the evidence underlying the award. According to Adejumo, the government should only have been allowed to seek restitution for the victim of the particular acts on which he had been convicted, not for other victims of his fraudulent scheme.

II.

Adejumo first challenges the district court’s jurisdiction to order restitution under- 18 U.S.C. § 3664. Section 3664(d)(5) provides that if a “victim’s losses are not ascertainable” ten days before sentencing, the government or probation officer “shall so inform the court, and the court shall set a date for the final determination of the victim’s losses, not to exceed 90 days after sentencing.” We review questions of statutory interpretation de novo. United States v. Zaic, 744 F.3d 1040, 1042 (8th Cir. 2014). If the district court at least makes clear at sentencing that it plans to order restitution, the fact that it “misses the statute’s 90-day deadline, even through its own fault or that of the Government, does not deprive the court of the power to order restitution.” Dolan v. United States, 560 U.S. 605, 611, 130 S.Ct. 2533, 177 L.Ed.2d 108 (2010). Although the delay here was six months longer than in Dolan, the district court retained its power to order restitution.

Adejumo also challenges the sufficiency of the evidence supporting the restitution award. We review the district court’s loss calculation for clear error. United States v. Adetiloye, 716 F.3d 1030, 1038 (8th Cir. 2013). A restitution award is “limited to the victim’s provable actual loss.” United States v. Chalupnik, 514 F.3d 748, 754 (8th Cir. 2008). Restitution for funds not actually lost by a victim would be an impermissible windfall. See United States v. Louper-Morris, 672 F.3d 539, 566 (8th Cir. 2012). A bank may therefore recover restitution only to the extent sufficient evidence has proven its ultimate loss.

Although the government bears the burden of proving the restitution amount by a preponderance of the evidence, Adetiloye, 716 F.3d at 1039, “a district court is charged only with reasonably estimating the loss” when the amount lost through fraud is difficult to estimate, United States v. Alexander, 679 F.3d 721, 729 (8th Cir. 2012) (quoting United States v. McKanry, 628 F.3d 1010, 1019 (8th Cir. 2011)). While the Federal Rules of Evidence do not apply at sentencing, information considered by the sentencing court must have ‘sufficient indicia of reliability to support [its] probable accuracy.’ ” United States v. Fleck, 413 F.3d 883, 894 (8th Cir. 2005) (alteration in original) (quoting United States v. Jones, 195 F.3d 379, 385 (8th Cir. 1999)). When “the defendant has objected to the amount of loss attributable to him, the government may meet its burden of proof by introducing testimony from the [investigating officer] or a sworn statement from the victim outlining the losses sustained as a result of the crime.” Adetiloye, 716 F.3d at 1039 (citation omitted).

We conclude that the government failed to provide sufficient evidence of the ultimate losses Adejumo caused the victim banks. The district court received bank records and other documentary evidence showing the amounts of money Adejumo initially obtained through his fraudulent scheme. Because of the long delay between Adejumo’s offenses and the restitution hearing, the documentary evidence showing the initial losses does not sufficiently show how much each bank ultimately lost. At the resentencing hearing, IRS special agent James Shoup testified that banks sometimes recover funds which initially appeared lost by fraud. The government introduced an unsigned report that listed Chase Debit’s loss to have been $237,108.99 as of 2009. That loss does not of course prove its 2015 loss.

The only evidence of the ultimate losses to the banks was presented in Agent Shoup’s testimony. No bank officials testified or submitted sworn statements, but Shoup testified that bank officials had estimated their ultimate losses in conversations with him and in emails. Shoup could not remember the details of these commu-mcations, however, and in some eases he could not even remember the name of the bank official who had provided the information. He also testified, that officials sometimes overstate the losses the bank has suffered. Here, for example, Anchor Bank retained $27,000 that it had initially reported to be a loss, and Guaranty Bank recovered $972 that bank documents had initially shown as a loss. Shoup’s own testimony showed that loss statements by the bank officials were not all accurate. The government also failed to show that the loss amount listed in the plea agreement was an ultimate loss to Chase. Based on the record here, we conclude that the government’s evidence was clearly insufficient to show the ultimate losses suffered by the victims. The restitution order should therefore be vacated.

While the purpose of restitution is to make victims whole, a remand is not in order given this record. The government has sought restitution from time to time during the long period since Adejumo’s original sentencing proceeding. Despite its awareness of Adejumo’s objections to its evidence, the government has not introduced additional evidence to prove the ultimate losses to the banks. Since more than four years have passed after Adejumo was originally sentenced, and in the interest of finality, we decline to remand for a third restitution proceeding. See United States v. Bertucci, 794 F.3d 925, 932 (8th Cir. 2015); United States v. Dagostino, 520 Fed.Appx. 90, 92 (3d Cir. 2013).

For these reasons the restitution award is vacated.

      . Because the restitution award is being vacated, we need not consider whether the district court properly ordered restitution after sentencing when Adejumo had claimed the amount was ascertainable more than 10 days prior to sentencing. See 18 U.S.C. § 3664(d)(5).


author: EBINGER, District Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Daniel Morris JOHNSON, Defendant-Appellant.
    No. 16-2355
    United States Court of Appeals, Eighth Circuit.
    Submitted: November 18, 2016
    Filed: February 17, 2017

      Counsel who presented argument on behalf of the appellant was James E. Ost-gard, II, of Minneapolis, MN.
    Counsel who presented argument on behalf of the appellee was Lisa D. Kirkpatrick, AUSA, of Saint Paul, MN.
    Before BENTON and SHEPHERD, Circuit Judges, and EBINGER, District Judge.

      . The Honorable Rebecca Goodgame Ebinger, United States District Judge for the Southern District of Iowa, sitting by designation.

   EBINGER, District Judge.

Daniel Johnson was charged with production of child pornography in violation of 18 U.S.C. § 2251(a) and 225Í(e). Johnson filed a motion to suppress evidence obtained during a search of his residence, alleging the affidavit supporting the warrant lacked probable cause because the information was stale and lacked a nexus to his residence. The district court adopted the magistrate judge’s report and recommendation denying Johnson’s motion to suppress. Johnson was found guilty after a bench trial.

At sentencing, Johnson argued his prior conviction — criminal sexual conduct in the fifth degree in violation of Minnesota law — should not be considered a predicate offense used to enhance his sentence. The district court applied the enhancement and sentenced Johnson to 354 months’ imprisonment. On appeal, Johnson argues the district court erred in denying his suppression motion and in applying the sentencing enhancement based on his prior Minnesota conviction. We affirm.

I. Background

Between 2009 and August 2010, Johnson was involved in a romantic relationship with K.J., an adult female. During that time, three children lived with K.J. in her home in Montevideo, Chippewa County, Minnesota, including her fifteen-year-old daughter, identified here as Jane Doe. In September 2010, Jane Doe wrote a letter to her mother disclosing Johnson sexually abused her on multiple occasions. K.J. delivered the letter to the Chippewa County Sheriffs Office.

On November 4, 2010, Chippewa County Sheriffs Deputy Brian Hanson and two victim advocates interviewed Jane Doe. Jane Doe disclosed repeated sexual abuse by Johnson, including at least four instances of sexual intercourse and one incident when Johnson took pictures of her during a sexual assault. After the interview, Deputy Hanson prepared an application for a search warrant for Johnson’s residence in Woodbury, Washington County, Minnesota, where Johnson was living with his mother. The warrant sought evidence of sexual abuse, including “explicit pictures or any pictures of’ Jane Doe on “[c]omput-ers, [e]omputer [d]isks, thumb drives,[ ]computer hardware[, c]ameras, [or c]ell [pjhones.”

As recounted in the affidavit supporting the search warrant, Jane Doe told Deputy Hanson that Johnson first sexually assaulted her approximately two weeks before Christmas in 2009. Jane Doe came home from school and Johnson was the only other person home. Johnson told Jane Doe “a friend had bought her a cell phone and that she could not see it or have it[ ]unless [Johnson] got to see her naked.” Jane Doe eventually acquiesced. She reported during the first assault Johnson “put his fingers in her vagina.” She also stated Johnson took pictures of her naked and “downloaded them on to his computer ... at [Johnson’s] mom’s house in Woodbury.” Jane Doe said Johnson “always downloaded all of his pictures on the computers at his mom’s house in Woodbury” and “he would go there at least once a week.” Jane Doe also disclosed Johnson had sexual intercourse with her on at least four occasions. The affidavit states Jane Doe said the sexual abuse stopped after Johnson’s arrest in February.

On November 10, 2010, a Minnesota state court judge signed the search warrant for the Woodbury residence Johnson shared with his mother. Deputy Hanson executed the warrant with the assistance of the Washington County Sheriffs Office. During the search, officers found Johnson in a locked room in the basement and arrested him. Officers seized sixteen computer towers and hard drives in addition to USB storage devices and two digital cameras. On one of the hard drives officers located a webcam video showing Johnson sexually assaulting Jane Doe.

Johnson was charged with one count of production of child pornography in violation of 18 U.S.C. § 2251(a) and 2251(e). Johnson moved to suppress the webcam video. After a hearing on the motion to suppress, the magistrate judge recommended Johnson’s suppression motion be denied. The district court adopted the magistrate judge’s report and recommendation.

On April 14, 2015, Johnson proceeded to a bench trial. He stipulated that Jane Doe was under 18 years old at the time the video was made and that the computer equipment traveled in interstate commerce. Johnson did not stipulate to knowingly producing the video of the sexual assault, asserting he did not know the webcam was on or recording because the webcam was motion-activated. The district court found Johnson guilty of production of child pornography.

At sentencing, Johnson objected to the use of his prior conviction to enhance the mandatory minimum and statutory maximum penalties applicable to his offense. Johnson argued his conviction for criminal sexual conduct in the fifth degree in violation of Minnesota Statute section 609.3451 is not a predicate offense under 18 U.S.C. § 2251(e). Johnson argued the statute is overinclusive because the offense is not necessarily committed for sexual gratification. The district court overruled Johnson’s objection, resulting in a 25-year mandatory minimum and a 50-year statutory maximum. The Government sought the 50-year maximum sentence. The court sentenced Johnson to 354 months’ imprisonment. The district court remarked he “would be imposing under ... these 3553(a) factors, exactly the same sentence” regardless of the predicate offense enhancement.

II. Discussion

A. Motion to Suppress

On appeal, Johnson argues the district court erred in denying his motion to suppress the evidence obtained during the search of his Woodbury residence. Johnson argues there was not probable cause supporting the search warrant application because: 1) it set forth stale evidence; and 2) it lacked a nexus with his Woodbury residence.

“We review the district court’s factual determinations in support of its denial of a motion to suppress for clear error and its legal conclusions de novo.” United States v. Johnson, 601 F.3d 869, 872 (8th Cir. 2010) (quoting United States v. Harper, 466 F.3d 634, 643 (8th Cir. 2006)). Reversal of a decision to deny a motion to suppress is warranted “only if the district court’s decision ‘is unsupported by substantial evidence, based on an erroneous interpretation of applicable law, or, based on the entire record, it is clear a mistake was made.’ ” Id. (quoting Harper, 466 F.3d at 643).

The role of a reviewing court is to ensure the magistrate issuing the warrant “had a ‘substantial basis for concluding that probable cause existed.’ ” United States v. Colbert, 828 F.3d 718, 726 (8th Cir. 2016) (quoting United States v. Garcia-Hernandez, 682 F.3d 767, 771 (8th Cir. 2012)); accord Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). “Probable cause exists, if under the totality of the circumstances, a showing of facts can be made ‘sufficient to create a fair probability that evidence of a crime will be found in the place to be searched.’ ” United States v. Wallace, 550 F.3d 729, 732 (8th Cir. 2008) (per curiam) (quoting United States v. Underwood, 364 F.3d 956, 963 (8th Cir. 2004), vacated on other grounds sub nom. Carpenter v. United States, 543 U.S. 1108, 125 S.Ct. 1037, 160 L.Ed.2d 1032 (2005)); accord Gates, 462 U.S. at 238, 103 S.Ct. 2317. The issuing court’s probable cause determination “should be paid great deference by reviewing courts.” United States v. Brewer, 588 F.3d 1165, 1170 (8th Cir. 2009) (quoting United States v. Hansel, 524 F.3d 841, 845 (8th Cir. 2008)).

1. Staleness

We first examine Johnson’s contention that the warrant was obtained based on stale information. “A warrant becomes stale if the information supporting the warrant is not ‘sufficiently close in time to the issuance of the warrant and the subsequent search conducted so that probable cause can be said to exist as of the time of the search.’ ” Colbert, 828 F.3d at 727 (quoting Brewer, 588 F.3d at 1173). The specific context and nature of the warrant must be examined for each case; “[t]here is no bright-line test for determining when information in a warrant is stale.” United States v. Lemon, 590 F.3d 612, 614 (8th Cir. 2010) (quoting United States v. Pruneda, 518 F.3d 597, 604 (8th Cir. 2008)). “Important factors to consider in determining whether probable cause has dissipated ... include the lapse of time since the warrant was issued, the nature of the criminal activity, and the kind of property subject to the search.” Colbert, 828 F.3d at 727 (omission in original) (quoting Brewer, 588 F.3d at 1173). A “lapse of time is least important when the suspected criminal activity is continuing in nature and when the property is not likely to be destroyed or dissipated.” Lemon, 590 F.3d at 614 (quoting United States v. Horn, 187 F.3d 781, 786 (8th Cir. 1999)).

We conclude the information used to establish probable cause was not stale. As the district court noted in denying Johnson’s motion to suppress, “[t]he affidavit alleges a number of very detailed occurrences of sexual assault against a minor over a period of time” with “specific details regarding photographs.” The search warrant was issued approximately eleven months after Johnson took the pictures, nine months after the last sexual assault, and at most three months after Jane Doe told her mother about the sexual assaults. Given the nature of the crime and type of evidence sought, the execution of the warrant in November 2010 did not render the warrant deficient based on stale information. See id. at 615 (holding the evidence demonstrated probable cause for a search warrant despite the eighteen-month gap between the defendant’s last exchange of child pornography and the. application for the warrant); United States v. Morales-Aldahondo, 524 F.3d 115, 119 (1st Cir. 2008) (holding the warrant’s information was not stale where 'there was a three-year lapse between the defendant’s purchase of child pornography and the warrant application).

Johnson urges this Court to rely upon the Third Circuit’s reasoning in United States v. Zimmerman to reach a contrary conclusion. 277 F.3d 426 (3d Cir. 2002). At issue in Zimmerman was a search warrant for the home of a high school teacher and coach. Id. at 429-30. The affidavit supporting the warrant “recounted various incidents in which [the defendant] allegedly sexually accosted students at the high school or on athletic road trips, with only brief mention made of [adult] pornography.” Id. at 431. The Zimmerman court found the warrant lacked probable cause to search the defendant’s home for child pornography because the affidavit did “not even allege much less demonstrate that [the defendant] was engaged in a ‘continuing offense’ of acquiring pornography and keeping it in his home.” Id. at 434. The court emphasized the warrant did not indicate the defendant “ever possessed child pornography” and the information about adult pornography was stale because the pornography was viewed six months prior via the Internet. Id. at 434-35.

Zimmerman is inapposite. In Zimmerman there was no evidence the defendant possessed child pornography, and there was no connection between the victim and the pornography or the evidence sought. In contrast, this search warrant sought evidence of sexual abuse, including naked photographs Johnson took of Jane Doe during a sexual assault. The affidavit stated Johnson downloaded the photographs of Jane Doe onto a computer at his mother’s residence in Woodbury — the location of the intended search. Cf. id. at 434-36. The affidavit supporting the search warrant also detailed Johnson’s sexual assaults of Jane Doe over several months, including sexual intercourse. These facts established a link between Johnson and Jane Doe, and the photographs sought. Unlike in Zimmerman, where there was no evidence the issuing court could rely upon to presume the defendant retained any relevant images (let alone any child pornography), here the issuing court could reasonably rely upon the presumption that Johnson would retain images of evidentiary value (including child pornography) in finding probable cause supported the warrant. See United States v. Summage, 481 F.3d 1075, 1078 (8th Cir. 2007) (presuming the defendant “would maintain in his possession the video and photographs that he made of the sexual encounter”); see also Lemon, 590 F.3d at 614 (“Possession of child pornography is a crime that is continuing in nature .... ”). Thus, the warrant, issued eleven months after Johnson took the naked photographs of Jane Doe, was not based upon stale information.

2. Nexus

We next turn to the issue of the nexus between the sexual assaults in Montevideo and the search of Johnson’s residence in Woodbury. In order to support an application for a search warrant, “[t]here must be evidence of a nexus between the contraband and the place to be searched.” Colbert, 828 F.3d at 726 (quoting United States v. Tellez, 217 F.3d 547, 550 (8th Cir. 2000)). Factors to consider in determining if a nexus exists include “the nature of the crime and the reasonable, logical likelihood of finding useful evidence.” Id. (quoting United States v. Etheridge, 165 F.3d 655, 657 (8th Cir. 1999)). Johnson contends the affidavit lacked reliable information to sufficiently bolster or corroborate Jane Doe’s knowledge about Johnson’s Woodbury residence.

We conclude the information in the affidavit established a search of Johnson’s Woodbury residence would likely result in discovery of evidence of sexual assault. The affidavit supporting the search warrant included' information specifically tying the sexual assault with evidence at the Woodbury residence Johnson shared with his mother. Jane Doe said Johnson took nude pictures of her during the first sexual assault. She said Johnson “downloaded the pictures [of her naked] on his computer that he has at his mom’s house in Woodbury.” The affidavit states Johnson “always downloaded all his pictures on the computers at his mom’s house in Woodbury” and returned to Woodbury “at least once a week.” These facts provided a substantial basis for the issuing court’s conclusion there was a reasonable likelihood evidence of Johnson’s sexual assault of Jane Doe would be found in Johnson’s Woodbury residence. Therefore, we hold the district court did not err in denying Johnson’s motion to suppress.

Even if the affidavit was insufficient to establish probable cause, the Leon good-faith exception prevents suppression of the seized evidence. See United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The evidence is admissible alternatively under the Leon good-faith exception because “it was objectively reasonable for the officer executing a search warrant to have relied in good faith on the judge’s determination that there was probable cause to issue the warrant.” United States v. Hudspeth, 525 F.3d 667, 676 (8th Cir. 2008) (quoting United States v. Grant, 490 F.3d 627, 632 (8th Cir. 2007)). “In assessing whether the officer relied in good faith on the validity of a warrant, we consider the totality of the circumstances, including any information known to the officer but not included in the affidavit....” Grant, 490 F.3d at 632. “It is the magistrate, and not the affiant, that is responsible for” determining whether probable cause exists. Summage, 481 F.3d at 1077-78.

At the time he requested the warrant, Deputy Hanson was aware Johnson was a registered sex offender. Deputy Hanson knew Johnson was required to register as a sex offender for the underlying offense of criminal sexual conduct in the fifth degree. He knew Johnson was arrested in February 2010 for failure to register as a sex offender. Deputy Hanson knew Johnson lived with K.J., Jane Does’s mother, during the time Jane Doe alleged Johnson sexually abused her. Deputy Hanson also knew Johnson occasionally resided with his mother in Woodbury, Minnesota. Based on these additional facts, along with those contained in the warrant affidavit, it was reasonable for Deputy Hanson to have relied in good faith on the judge’s determination there was probable cause to issue the warrant. See Hudspeth, 525 F.3d at 676. Moreover, there is no reason not to apply the good-faith exception. See United States v. Jackson, 784 F.3d 1227, 1231 (8th Cir. 2015) (listing “four situations when the good-faith exception would not apply”). Therefore, even if probable cause was lacking, the district court’s order denying Johnson’s motion to suppress would be affirmed.

B. Predicate Offense Enhancement

Johnson’s presentence investigation report recommended his sentence be enhanced pursuant to § 2251(e) based on his prior conviction for criminal sexual conduct in the fifth degree. The district court agreed and applied the enhancement despite Johnson’s objection. The court sentenced Johnson to 354 months’ imprisonment.

“We review de novo the district court’s use of prior convictions for sentencing enhancement purposes.” United States v. Lockwood, 446 F.3d 825, 827 (8th Cir. 2006). Section 2251 criminalizes the production of child pornography. It provides for a minimum sentence of 15 years (180 months) and a maximum sentence of 30 years (360 months). 18 U.S.C. § 2251(e). The minimum and maximum penalties are enhanced when- the defendant has one pri- or state conviction “relating to aggravated sexual abuse, sexual abuse, abusive sexual contact involving a minor or ward.” Id. The minimum sentence becomes 25 years' (300 months) and the maximum sentence becomes 50 years (600 months). Id. Johnson argues § 2251(e) is inapplicable because his prior conviction does not relate to the sexual abuse of a minor.

We need not reach the issue of whether the district court properly enhanced Johnson’s sentence based on his prior Minnesota conviction because any error in applying the enhancement was harmless. Under Federal Rule of Criminal Procedure 52(a), “[a]ny error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.” The burden is on the government to prove an error was harmless. See United States v. Bah, 439 F.3d 423, 430 (8th Cir. 2006). The government may meet its burden by showing the district court “specifically contemplated the possible error” and itself engaged in contemplation about “the potential impact of the specific error involved.” United States v. Henson, 550 F.3d 739, 741-42 (8th Cir. 2008) (considering a procedural error).

In this case, we conclude the Government met its burden to show any error by the district court in applying the sentencing enhancement was harmless. The district court’s 354-month sentence is less than the unenhanced statutory maximum (360 months) and within the enhanced statutory sentencing range (300 to 600 months). See 18 U.S.C. § 2251(e). The sentencing-hearing transcript demonstrates the district court “specifically contemplated” an error in applying the enhancement. Henson, 550 F.3d at 742. The district court stated it would have imposed the same sentence regardless of whether Johnson’s prior Minnesota conviction qualified as a predicate offense under § 2251(e). The district court said “anything less than [the sentence the Court imposed] would not promote sufficient respect for the law.” The district court determined the consequences of an error, if any, would not impact the sentence imposed; any purported error was harmless. We affirm the district court’s imposition of a 354-month sentence.

III. Conclusion

The judgment of the district court is affirmed.

      . The Honorable Donovan W. Frank, United States District Judge for the District of Minnesota, adopting the report and recommendation of the Honorable Tony N. Leung, United States Magistrate Judge for the District of Minnesota.

      . At trial, the evidence indicated Johnson was arrested in February 2010 for failure to register as a sex offender in Chippewa County and pleaded guilty.

      . A second search warrant, not at issue here, was 'obtained prior to the search of the computer equipment.