United States v. Christopher Strong

Filing

PER CURIAM OPINION FILED - THE COURT: JAMES B. LOKEN, C. ARLEN BEAM and RAYMOND W. GRUENDER (UNPUBLISHED) [3811746] [11-1170]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 11-1170
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United States of America,
Appellee,
v.
Christopher Michael Strong,
Appellant.

*
*
*
* Appeal from the United States
* District Court for the
* District of Minnesota.
*
* [UNPUBLISHED]
*
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Submitted: June 15, 2011
Filed: July 27, 2011
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Before LOKEN, BEAM, and GRUENDER, Circuit Judges.
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PER CURIAM.
Christopher Strong, an Indian within the meaning of federal law, pled guilty to
assault resulting in serious bodily injury, a violation of 18 U.S.C. §§ 113(a)(6) and
1153(a), based on his conduct on November 9 and 11, 2009. On November 9, Strong
assaulted his wife, inflicting injuries that required medical treatment. When she
returned from the hospital on November 11, Strong assaulted her again. During the
course of these two days, Strong kicked, punched, and bit his wife, causing injuries
to her head, neck, thorax, legs, shoulders, and arms.

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The district court1 calculated an advisory sentencing guidelines range of 37 to
46 months’ imprisonment, based on a total offense level of 21 and a criminal history
category of I.
Despite having twenty-one prior convictions for various
offenses—including terroristic threats, domestic violence, and third degree aggravated
assault—Strong avoided the assignment of any criminal history points because each
of the convictions had been imposed by a tribal court. The district court, citing the
nature and circumstances of the offense, Strong’s history and characteristics, and the
promotion of respect for the law, varied upward from the guidelines range and
imposed a sentence of 54 months. However, in the course of filling out the postsentencing Statement of Reasons form, the court checked boxes indicating that, rather
than varying upward under the 18 U.S.C. § 3553(a) factors, it had departed upward
based on understated criminal history, see U.S.S.G. § 4A1.3, and extreme
psychological injury, see § 5K2.3. Strong appeals, arguing that the district court
committed procedural error by departing based on extreme psychological injury and
imposed a substantively unreasonable sentence.
Before reaching the substantive reasonableness of the sentence, we “must first
ensure that the district court committed no significant procedural error.” Gall v.
United States, 552 U.S. 38, 51 (2007). In reviewing for procedural error, we review
the district court’s factual findings for clear error and its application of the guidelines
de novo. United States v. Thomas, 630 F.3d 1055, 1056 (8th Cir. 2011) (per curiam).
Strong argues that the district court erred by departing upward under § 5K2.3
because the court “did not properly support its finding that the psychological injury
sustained was ‘extreme.’” However, the district court’s explanation at sentencing
reveals that the court did not impose an upward departure. By never once referring
to § 5K2.3 or using the term departure and by thoroughly considering several of the

1

The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota.
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§ 3553(a) factors—including the seriousness of the offense, see § 3553(a)(2)(A), the
promotion of respect for the law, see id., and the defendant’s criminal history, see
§ 3553(a)(1)—the district court made it clear that it reached the 54-month sentence
by varying under § 3553(a), rather than by departing under the guidelines. See United
States v. Mayo, 642 F.3d 628, 633 (8th Cir. 2011) (“[W]hen an oral sentence and the
written judgment conflict, the oral sentence controls.”); see also Ferguson v. United
States, 623 F.3d 627, 630 (8th Cir. 2010) (holding that the district court had varied,
rather than departed, because it had discussed several § 3553(a) factors and had never
mentioned departure). While the district court erroneously checked boxes on the
Statement of Reasons form indicating that it had departed upward, this hardly
constitutes the type of “significant procedural error,” see Gall, 552 U.S. at 51, that
would require resentencing. See United States v. Waldner, 580 F.3d 699, 709 (8th Cir.
2009) (“[Only] a non-harmless error in calculating the [G]uidelines range requires a
remand for resentencing.” (second alteration in original) (quoting United States v.
Tomac, 567 F.3d 383, 386 (8th Cir. 2009)).
Strong also contends that his sentence is substantively unreasonable. We
review the substantive reasonableness of a sentence under a deferential
abuse-of-discretion standard. United States v. Mees, 640 F.3d 849, 856 (8th Cir.
2011). “[A]n abuse of discretion occurs ‘where the sentencing 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.
Bryant, 606 F.3d 912, 921 (8th Cir. 2010) (quoting United States v. Moore, 565 F.3d
435, 438 (8th Cir. 2009)). “The district court has wide latitude to weigh the § 3553(a)
factors in each case and assign some factors greater weight than others in determining
an appropriate sentence.” United States v. Bridges, 569 F.3d 374, 379 (8th Cir. 2009).
Because of the deference afforded to the district court in sentencing, “it will be the
unusual case when we reverse a district court sentence . . . as substantively

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unreasonable.” United States v. Feemster, 572 F.3d 455, 464 (8th Cir. 2009) (en
banc) (quoting United States v. Gardellini, 545 F.3d 1089, 1090 (D.C. Cir. 2008)).
Strong argues that the district court gave too much weight to his criminal
history and too little weight to his acceptance of responsibility, his troubled childhood,
and the sentencing disparity between him and those charged in state court with similar
offenses. We conclude that the district court did not commit a clear error of judgment
in weighing these factors. As Strong concedes, his criminal history includes a large
number of convictions, including numerous convictions for violent crimes, such as
assaulting his former wife, threatening a law enforcement officer, and stabbing a man
in the abdomen. The court committed no clear error of judgment in giving significant
weight to his criminal history, especially as these convictions did not result in the
imposition of any criminal history points. See Ferguson, 623 F.3d at 632 (affirming
a 48-month upward variance based in part on “violations not included in [the
defendant’s] criminal history points”). We also are unpersuaded by Strong’s
suggestion that the court gave insufficient weight to his acceptance of responsibility
and troubled past. The court considered these factors but found that Strong’s criminal
history, the severity of the offense, and the risk of recidivism outweighed them. In
doing so, the district court did not exceed its “wide latitude to . . . assign some factors
greater weight than others in determining an appropriate sentence.” See Bridges, 569
F.3d at 379. Finally, we reject Strong’s contention that his sentence creates an
unwarranted disparity between himself and defendants charged in state court with
similar offenses. Strong’s argument is based only on the assertion that he likely
would have received a lesser sentence for the same crime had he been charged in state
court. We have held that this type of disparity is not a proper sentencing
consideration. See United States v. Deegan, 605 F.3d 625, 635-36 (8th Cir. 2010),
cert. denied, 563 U.S. ----, 131 S. Ct. 2094 (2011). Thus, we conclude that the district
court did not abuse its discretion and that the sentence imposed by the court is not
substantively unreasonable.

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For the foregoing reasons, we affirm Strong’s sentence.
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