United States v. Bobby R. Olson

716 F.3d 1052, 2013 WL 2450135, 2013 U.S. App. LEXIS 11493
CourtCourt of Appeals for the Eighth Circuit
DecidedJune 7, 2013
Docket12-3408
StatusPublished
Cited by14 cases

This text of 716 F.3d 1052 (United States v. Bobby R. Olson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Bobby R. Olson, 716 F.3d 1052, 2013 WL 2450135, 2013 U.S. App. LEXIS 11493 (8th Cir. 2013).

Opinion

MURPHY, Circuit Judge.

Bobby Olson was arrested for stealing a car from a casino parking lot and pled guilty to larceny in violation of 18 U.S.C. §§ 661 and 1152. At sentencing the district court 1 determined that Olson’s criminal history warranted an upward departure from his guideline range and sentenced him to 30 months imprisonment. Olson appeals his sentence, alleging procedural and substantive errors. We affirm.

On February 18, 2012, Olson visited a casino on the Standing Rock Sioux Indian Reservation outside Mobridge, South Dakota. He drank heavily and lost a lot of money gambling. The casino eventually refused to serve him more alcohol or cash additional checks. Thereafter, Olson began rummaging through cars in the park *1055 ing lot, pilfering various items including two sweatshirts, a pair of jeans, and a cell phone. After finding a set of keys in the glove compartment of one car, he stole the vehicle and drove back to Mobridge where he was staying in a motel with his pregnant wife and another individual. Olson abandoned the car a few blocks from the motel, taking with him a bag of music CDs. Police soon located the stolen vehicle and found Olson in his motel with many of the stolen items. Olson was arrested and later pled guilty to larceny in violation of 18 U.S.C. §§ 661 and 1152.

Olson had acquired an extensive criminal record in his twenty four years of life. His presentence investigation report (PSR) detailed eleven adult convictions, most of which involved drug use or car thefts. It also reported on six other arrests for similar conduct and nine charges still pending in state court. The PSR recommended criminal history category VI for him and an offense level of 6, resulting in a guideline range of 12 to 18 months. Olson filed several objections to the PSR but none involved his criminal history or arrests.

After the PSR was finalized, the district court notified counsel that it was considering an upward departure based on Olson’s “terrible record.” The court explained that Olson’s criminal histpry category,, “although already the highest one can have under the Guidelines, significantly under represents his actual criminal history as well as the likelihood that he will commit other crimes.” Olson did not respond to the court’s letter. 1 At sentencing Olson asked for leniency and requested a downward departure from his guideline range, emphasizing as mitigating factors his difficult upbringing and his wife and young child. While Olson did not formally object to the consideration of an upward departure, he attempted to distinguish himself from prior defendants who had received upward departures from the same district court judge.

The court stated after its detailed review Of Olson’s criminal history that “[t]his young man is 24 years of age and has been a one-man crime wave.” It determined that an upward departure was warranted because Olson’s criminal history category “substantially underrepresents the likelihood that he will commit other crimes of this nature and substantially underrepre-sents his actual criminal history.” Since Olson had already reached the highest criminal history category, the only upward departure available was to move to a higher offense level. See U.S.S.G. § 4A1.3(a)(4)(B). The court thus adjusted Olson’s offense level to 12, resulting in a guideline range of 30 to 37 months. In sentencing Olson to 30 months imprisonment, the court stated that it considered this “a lenient sentence, under all the facts and circumstances of this case.”

Olson appeals his sentence. When reviewing a sentence, we first ensure that the district court committed no significant procedural errors. United States v. Feemster, 572 F.3d 455, 461 (8th Cir.2009) (en banc). In the absence of procedural error, we next review whether the sentence was substantively reasonable. Id. Olson first argues that the district court procedurally erred in departing upward from his guideline range. Although we normally review an upward departure for abuse of discretion, United States v. King, 627 F.3d 321, 323 (8th Cir.2010), the government argues that we should review the departure in this case only for plain error. The reasons it offers are that Olson neither responded to the district court’s presentencing letter stating that it was considering an upward departure nor formally objected to the departure at sentencing. We conclude the district court did not err under either plain *1056 error review or an abuse of discretion standard.

Two provisions in the sentencing guidelines are relevant here. First, U.S.S.G. § 4A1.3(a)(l) allows the sentencing court to depart upward from the guideline range “[i]f reliable information indicates that the defendant’s criminal history category substantially under-represents the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes.” Second, U.S.S.G. § 5K2.0 allows for upward departures based on aggravating circumstances, but not for departures covered by other guidelines including criminal history. U.S.S.G. § 5K2.0 cmt. n. 2(B). Here, the district court’s presentencing letter to the parties and its oral pronouncements at sentencing did not identify under which guideline it was departing upward. In the court’s written statement of reasons, however, it checked the box for U.S.S.G. § 5K2.0 departures. Nonetheless, the court’s sole announced reason for departing was Olson’s extensive criminal history. The court also used language nearly identical to that in U.S.S.G. § 4A1.3(a)(l) while explaining its reasoning.

Olson concentrates on the written statement of reasons form and argues that the court “incorrectly applied the Sentencing Guidelines” by departing under U.S.S.G. § 5K2.0 since the application notes explain that that section does not cover departures based on criminal history. U.S.S.G. § 5K2.0 cmt. n. 2(B). It is well settled, however, that a district court’s oral sentence controls when it conflicts with the written judgment. United States v. Buck, 661 F.3d 364, 374 (8th Cir.2011). If the oral sentence is ambiguous, our task is to discern the court’s intent. Id. We then look at “the entire sentencing pronouncement” including the written record. Id. (citation omitted).

After our review of the record, it appears clear that the district court intended to depart upward under U.S.S.G. § 4A1.3.

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Bluebook (online)
716 F.3d 1052, 2013 WL 2450135, 2013 U.S. App. LEXIS 11493, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-bobby-r-olson-ca8-2013.