United States v. Gary Dean Growden

Filing

PER CURIAM OPINION FILED - THE COURT: KERMIT E. BYE, LAVENSKI R. SMITH and STEVEN M. COLLOTON (PUBLISHED) [3859574] [11-1488]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 11-1488
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United States of America,
Appellee,
v.
Gary Dean Growden,
Appellant.

*
*
*
* Appeal from the United States
* District Court for the
* District of Minnesota.
*
* [PUBLISHED]
*
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Submitted: October 20, 2011
Filed: December 15, 2011
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Before BYE, SMITH, and COLLOTON, Circuit Judges.
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PER CURIAM.
After serving twenty-seven months’ imprisonment for wire fraud offenses in
violation of 18 U.S.C. § 1343, Gary Dean Growden commenced a three-year term of
supervised release. Shortly thereafter, Growden admitted to violating a supervised
release condition. The district court1 sentenced Growden to a new three-year term of
supervised release and clarified the special conditions it had imposed. A few months
later, Growden again admitted to a similar violation. Upon Growden’s second guilty
plea, the district court revoked Growden’s supervised release and sentenced him to
1

The Honorable Patrick J. Schiltz, United States District Judge for the District
of Minnesota.

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the statutory maximum twenty-four months’ imprisonment, a variance above the
guideline-recommended sentence of three to nine months. Growden appeals the
sentence, arguing it is substantively unreasonable. We affirm.
Growden pleaded guilty to two counts of wire fraud on December 18, 2006, in
the United States District Court for the District of Minnesota. He admitted to
soliciting a total of nearly $400,000 from individual investors, and instead of
investing the money as promised, personally using the funds. For this crime, the
district court sentenced Growden to twenty-seven months’ imprisonment, followed
by three years of supervised release. Among the special conditions the district court
imposed during Growden’s first supervised release was a provision stating: “The
defendant shall not hold employment with fiduciary responsibilities without prior
approval from the probation office.”
Growden began his supervised release in June 2009. In May 2010, Growden’s
probation officer petitioned the district court to revoke his supervised release,
asserting Growden had violated his conditions of release. At the supervised release
revocation hearing in June 2010, Growden admitted to maintaining a website
supporting Couthers, Inc.—the same company Growden used to defraud investors in
relation to his underlying fraud charges—without his probation officer’s approval.
Rather than revoking Growden’s supervised release at that time, the district court
instead clarified the terms of Growden’s supervised release as it related to “fiduciary
responsibilities,” and explicitly warned Growden to avoid all types of business related
to the financial services industry and third party investment activity.
In February 2011, Growden’s probation officer again filed a revocation
petition, and the district court held a second supervised release revocation hearing.
The petition alleged Growden was actively soliciting funds to purchase a winery in
Italy, had entered into a partnership with an investment company in Texas, and had
been “pursuing the funding and sale of invention patents without the prior approval”
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of his probation officer. Growden admitted all violations. The court specifically
found Growden had violated the terms and conditions of his release “by attempting
to arrange and finance a purchase of an Italian winery, including attempting to secure
investors to participate in the deal; attempting to secure investors to commercialize
his inventions; and lying to the probation officer about and disobeying her
instructions about attempts to commercialize his investments.”
The district court correctly calculated the suggested guideline imprisonment
range of three to nine months, with a supervised release term of up to three years
upon revocation of Growden’s supervised release. The court varied upwards from
this guideline range, and sentenced Growden to the statutory maximum of 24 months’
imprisonment, followed by one year of supervised release. See 18 U.S.C. § 3583(e).
Growden timely appealed, contending the district court abused its discretion by
imposing a substantively unreasonable sentence, which is greater than necessary to
achieve the purposes of sentencing. See 18 U.S.C. § 3553(a). Specifically, Growden
asserts the district court unreasonably varied upwards in light of the fact Growden is
a first-time offender; he had not engaged in any new criminal conduct while on
supervised release; his failure to comply with the conditions of supervised release was
a factor already contemplated by the guidelines; and the emails that formed the basis
of the violation were sent to Growden’ s family and friends, and did not amount to
serious attempts to obtain financing for his ventures. We disagree.
“We review a district court’s sentence on revocation of supervised release for
. . . substantive reasonableness under ‘the same reasonableness standard that applies
to initial sentencing proceedings.’” United States v. Benton, 627 F.3d 1051, 1055
(8th Cir. 2010) (quoting United States v. Merrival, 521 F.3d 889, 890 (8th Cir.
2008)). Accordingly, we review the substantive reasonableness of Growden’s
sentence under a deferential abuse-of-discretion standard. Gall v. United States, 552
U.S. 38, 51 (2007); see also United States v. Thunder, 553 F.3d 605, 607 (8th Cir.
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2009). “‘A district court abuses its discretion and imposes an unreasonable sentence
when it fails to consider a relevant and significant factor, gives significant weight to
an irrelevant or improper factor, or considers the appropriate factors but commits a
clear error of judgment in weighing those factors.’” United States v. Kreitinger, 576
F.3d 500, 503 (8th Cir. 2009) (quoting United States v. Miner, 544 F.3d 930, 932 (8th
Cir. 2008)).
While Growden’s sentence is greater than the advisory guidelines range, we
conclude the district court did not abuse its discretion, and the sentence is not
substantively unreasonable. The district court gave appropriate consideration to the
18 U.S.C. § 3553(a) factors, sufficiently explained its reasoning for the variance, and
imposed a sentence within the statutory limits. See Benton, 627 F.3d at 1055-56.
The court voiced well-founded concerns during the second revocation hearing over
the number and seriousness of Growden’s violations, his lack of remorse and refusal
to take responsibility for his crimes or supervised release violations, his general
disrespect for the law, and his “incredibl[y] dishonest” character as evidenced by
Growden’s repeated lies to court officers and third parties. Furthermore, the court
desired to “prevent the public from being swindled by him.” Therefore, we conclude
the court acted well within its broad discretion in selecting a term of 24 months’
imprisonment, followed by one year of supervised release.
Accordingly, we affirm the judgment and sentence of the district court.
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