United States v. Paul Peter Swehla

442 F.3d 1143, 2006 U.S. App. LEXIS 7873, 2006 WL 829759
CourtCourt of Appeals for the Eighth Circuit
DecidedMarch 31, 2006
Docket05-2256
StatusPublished
Cited by18 cases

This text of 442 F.3d 1143 (United States v. Paul Peter Swehla) 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. Paul Peter Swehla, 442 F.3d 1143, 2006 U.S. App. LEXIS 7873, 2006 WL 829759 (8th Cir. 2006).

Opinion

MELLOY, Circuit Judge.

Paul Peter Swehla appeals the district court’s 2 sentence of 262 months imprisonment for distributing morphine within 1,000 feet of a school. Swehla argues that his sentence is unreasonable because his criminal record was overstated and the presentence report was inflammatory and not objective. We affirm.

I.

In November 1998, Swehla’s father, Gerald Swehla, was diagnosed with colon cancer. A doctor prescribed large quantities of morphine to allow Swehla’s father to cope with the pain associated with his cancer. Swehla’s sister, Paulette Heying, who was a nurse, cared for her father until he died on June 7, 1999. At that time, Hey-ing stored the remaining morphine in her home. Over the next two-and-one-half years, Swehla stole more than one hundred 15 mg, 30 mg, and 100 mg morphine pills from Heying’s home.

On January 21, 2002, Swehla provided some of the morphine pills to his friend, Ryan Monson. Because Monson had been drinking heavily with Swehla, the morphine had a dangerous interaction with the alcohol in Monson’s system. Monson died the next morning. Under the plea agreement, the parties stipulated that the morphine pills were a contributing factor in Monson’s death.

After Monson’s death, another friend of Swehla, Craig Witt, confronted Swehla about the morphine pills. Swehla gave a baggie containing over forty pills to Witt along with some loose change. Witt took the pills and loose change to a nearby creek to dump them. Witt later told police the location of where he had dumped the pills and loose change. The police recovered the loose change, but the pills had been washed away by the creek. Later that day, Fawn Benson, another friend of Swehla, found an additional sixty morphine pills inside Swehla’s bandana in Swehla’s bedroom. Benson turned over the sixty pills to police.

After learning that he was wanted for questioning in relation to Monson’s death, Swehla made plans to leave the country. On February 9, 2002, Swehla left the United States for Mexico. On October 11, 2002, Swehla was charged in a one-count indictment with distributing morphine in violation of 21 U.S.C. § 841. A warrant *1145 for Swehla’s arrest was subsequently issued ..

Swehla was captured by authorities on February 11, 2004 when he attempted to reenter the United States in Brownsville, Texas. On March 3, 2004, Swehla made an initial appearance and pled not guilty. On November 17, 2004, the government filed a superceding indictment charging Swehla with distributing morphine within 1,000 feet of a school, possession with intent to distribute morphine within 1,000 feet of a school, and distribution of morphine causing the death of Monson. The government and Swehla entered into a plea agreement. Swehla agreed to a career offender classification, with a resulting guideline range of 210 to 262 months imprisonment. It was the understanding of both parties that the district court would sentence Swehla within that range. The government agreed to dismiss the remaining counts of the indictment. On December 22, 2004, Swehla entered a guilty plea to distributing morphine within 1,000 feet of a school.

The district court sentenced Swehla on April 29, 2005, after the United States Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). In the presentence report, the probation officer concurred with the parties’ career offender calculation, including a total adjusted offense level of thirty-two and a criminal history category VI, which yielded a total advisory Guidelines range of 210 to 262 months imprisonment. The district court sentenced Swehla to 262 months imprisonment, six years of supervised release, and a $100 assessment. Swehla appeals his sentence.

II.

Swehla contends that his sentence of 262 months imprisonment was unreasonable in light of the factors set forth in 18 U.S.C. § 3553(a). The government argues that we should review Swehla’s sentence for plain error because Swehla did not properly preserve error on reasonableness by objecting when the sentence was pronounced. Swehla contends that such an objection is unnecessary because a defendant only need argue for a different sentence before the sentence is pronounced. Consequently, Swehla argues that we should review the sentence for reasonableness. See United States v. Marcussen, 403 F.3d 982, 985 (8th Cir.2005). A review for reasonableness is equivalent to abuse of discretion review. United States v. Hadash, 408 F.3d 1080, 1083 (8th Cir.2005). We find the government’s argument unpersuasive. Once a defendant has argued for a sentence different than the one given by the district court, we see no reason to require the defendant to object to the reasonableness of the sentence after the court has pronounced its sentence. Accordingly, we review Swehla’s sentence for reasonableness.

A sentence within the advisory Guidelines range is presumptively reasonable. United States v. Lincoln, 413 F.3d 716, 717 (8th Cir.2005). Generally, a sentence is presumed reasonable when the district court properly considers the defendant’s circumstances, the factors listed in § 3553(a), and the advisory sentencing guidelines range when determining the sentence. United States v. Vasquez, 433 F.3d 666, 670 (8th Cir.2006). In the present matter, the district court considered the defendant’s circumstances, the § 3553(a) factors, and the advisory guidelines range. We do not find any error in the district court’s handling of those issues.

Swehla contends that his career offender status overstated his criminal history, Consequently, he contends that his sentence should'have been at the bottom *1146 of the sentencing range. Specifically, Swehla argues that all of his prior criminal history occurred in the early 1990s when he was a juvenile offender. The crimes that formed the basis for the career offender finding were committed when Swehla was seventeen and eighteen years old. Swehla cites United States v. Hutman, 339 F.3d 773 (8th Cir.2003), and similar cases to support the contention that we have recognized downward departures as appropriate when a criminal history is composed of youthful offenses during a limited period of time.

The present matter is different than those cases cited by Swehla. Swehla committed many crimes from the age of fifteen to eighteen.

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Bluebook (online)
442 F.3d 1143, 2006 U.S. App. LEXIS 7873, 2006 WL 829759, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-paul-peter-swehla-ca8-2006.