United States v. Kelvin Stanford

642 F. App'x 657
Court of Appeals for the Eighth Circuit·Decided May 19, 2016·No. 15-1064·Unpublished·Cited by 1 cases

Opinion

PER CURIAM.

Kelvin Stanford appeals from the district court’s 1 decision revoking his supervised release and imposing a sentence of *659 18 months’ imprisonment and three years’ supervised release. He contends that the prison sentence was unreasonable. We affirm.

In July 2012, Stanford pleaded guilty to knowing possession with intent to distribute marijuana, see 21 U.S.C. §'841(a)(1), and knowing possession of a firearm by an unlawful user of a controlled substance, see 18 U.S.C. § 922(g)(3). The district court sentenced him to 24 months’ imprisonment followed by a three-year term of supervised release. Less than three months after his release from prison, Stanford was stopped by the highway patrol while he was driving in Utah. Because Stanford’s vehicle smelled of marijuana, the officer conducted a search. The officer found over eleven pounds of marijuana divided into twenty-two eight-ounce packages inside Stanford’s trunk. The officer took Stanford into custody, and Stanford was charged with possession of a controlled substance, possession of drug paraphernalia, and failure to signal a lane change. Shortly thereafter, the probation office petitioned the district court to revoke Stanford’s supervised release. The petition described the incident and noted that Stanford did not have permission to travel outside of the judicial district in which he was being supervised.

At the revocation hearing, Stanford admitted to the violations related to the Utah incident. The statutory maximum sentence was two years’ imprisonment. See 18 U.S.C. § 3583(e)(3). Stanford’s advisory guidelines range was 4-10 months’ imprisonment. The Government argued that the court should vary upward to impose a sentence of 18 months’ imprisonment. In support of this position, the Government explained that Stanford’s conduct in Utah was very similar to the conduct that led to his initial conviction and that a longer sentence was necessary to “teach the defendant [the] lesson that he failed to learn” during his first term of imprisonment. Stanford, in turn, contended that the court should impose a prison sentence within the advisory guidelines range. He argued that his offense was nonviolent, he accepted responsibility for his actions, he was taking classes, and he complied with drug testing during his first three months of supervised release. The court sentenced Stanford to 18 months’ imprisonment followed by three years of supervised release, noting that the prison term would be consecutive to any punishment imposed for the offense in Utah. The court chose this sentence because Stanford “violated the trust of th[e] Court by, within about 3 months of his release from imprisonment, committing almost an identical crime” to the crime underlying his initial conviction. The court also noted that- Stanford “ch[ose] to go right back into criminal activity” despite having an employment record and skills.

On appeal, Stanford argues that the 18-month prison sentence imposed by the district court was unreasonable. We review a district court’s revocation sentencing decision using the same standards wé apply to initial sentencing decisions. United States v. Cotton, 399 F.3d 913, 916 (8th Cir.2005). We thus review for abuse of discretion. United States v. Feemster, 572 F.3d 455, 461 (8th Cir.2009) (en banc). In conducting this review, we search first for procedural errors, such as “failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the 'Guidelines range.” Id. (quoting Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)); United States v. Miller, 557 F.3d 910, 916 (8th *660 Cir.2009). In the absence of procedural error, our court considers the substantive reasonableness of the sentence. Feemster, 572 F.3d at 461. In this review, we “take into account the totality of the circumstances, including the extent of any variance from the Guidelines range.” Id. (quoting Gall, 552 U.S. at 51, 128 S.Ct. 586). “A sentence is substantively unreasonable ‘if the district court fails, to consider a' relevant factor that should have received significant weight, gives significant weight to an improper or irrelevant factor, or considers only the appropriate factors but commits a clear error of judgment in weighing those factors.’ ” United States v. Boelter, 806 F.3d 1134, 1136 (8th Cir.2015) (per curiam) (quoting United States v. Lozoya, 623 F.3d 624, 626 (8th Cir.2010)).

Stanford does not raise any allegation of procedural error. Instead, he contends that the prison sentence was substantively unreasonable because the court committed a clear error of judgment when weighing the § 3553(a) factors. According to Stanford, the court did not consider adequately (1) his record of good conduct in prison and during the first three months of supervised release, (2) the possibility that he would face punishment in Utah as a consequence of his offense, and (3) alternatives to imprisonment, such as a residential reentry center, that would be more effective in deterring Stanford from resorting to criminal conduct in the future. The district court explained at sentencing that it considered the statutory factors and the various sentencing options that it could impose. See United States v. Townsend, 617 F.3d 991, 994 (8th Cir.2010) (per cu-riam) (“Although a district court is required to consider each of the § 3553(a) factors in determining the proper sentence to impose, it need not ‘categorically rehearse each of the [§ ] 3553(a) factors on the record when it imposes a sentence as long as it is clear that they were considered.’ ” (quoting United States v. Dieken, 432 F.3d 906, 909 (8th Cir.2006) (alteration in original))). While our court may not apply a presumption of reasonableness when a sentence falls outside the guidelines range, we “must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.” Feemster, 572 F.3d at 461-62 (quoting Gall, 552 U.S. at 51, 128 S.Ct. 586). “[I]t will be the unusual case when we reverse a district court sentence—whether within, above, or below the applicable Guidelines range—as substantively unreasonable.”

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United States v. Kelvin Stanford, 642 F. App'x 657 (8th Cir. 2016).

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