United States v. Deangelo Grant

Filing

PER CURIAM OPINION FILED - THE COURT: DIANA E. MURPHY, KERMIT E. BYE and STEVEN M. COLLOTON (UNPUBLISHED) [3871512] [11-2372]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________
No. 11-2372
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United States of America,
Appellee,
v.
Deangelo Tarryl Grant,
Appellant.

*
*
*
* Appeal from the United States
* District Court for the
* Western District of Missouri.
*
* [UNPUBLISHED]
*
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Submitted: January 9, 2011
Filed: January 23, 2012
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Before MURPHY, BYE, and COLLOTON, Circuit Judges.
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PER CURIAM.
After Deangelo Tarryl Grant violated the terms of his supervised release for the
third time, the district court1 sentenced him to thirty months’ imprisonment, with no
supervised release to follow. Grant appeals, arguing the district court committed a
procedural error by failing to adequately consider the factors listed in 18 U.S.C.
§ 3553(a) and abused its discretion by imposing a substantively unreasonable
sentence. We affirm.

1

The Honorable Scott O. Wright, United States District Judge for the Western
District of Missouri.

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In September 2004, Grant pleaded guilty to possession with intent to distribute
five grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(B). The district court sentenced him to sixty months in prison, followed by
sixty months of supervised release. Grant began serving his initial term of supervised
release in November 2007. In February 2008, the district court revoked Grant’s term
of supervised release and sentenced him to twelve months’ imprisonment, followed
by a new sixty-month term of supervised release. Grant began serving his second
term of supervised release in January 2009, which the district court again revoked in
June 2009. Following Grant’s second revocation, the court sentenced him to twentyfour months in prison and imposed a two-year term of supervised release.
Grant commenced his third term of supervised release in December 2010. In
March 2011, the Probation Office issued a report, alleging Grant had violated certain
conditions of his release. Specifically, the report noted a warrant had been issued for
Grant’s arrest for possession with intent to distribute marijuana, among other
violations. A final revocation hearing was set for June 2, 2011. At the hearing, Grant
admitted to the allegations in the report and the court proceeded to sentencing. After
calculating an advisory Guidelines range of twenty-four to thirty months in prison
under United States Sentencing Guidelines Manual § 7B1.4(a), the court sentenced
Grant to thirty months’ imprisonment, with no supervised release to follow. Grant
timely appealed.
On appeal, Grant argues the district court committed procedural error by failing
to consider the sentencing factors set forth in section 3553(a) and contends the court
abused its discretion by imposing a substantively unreasonable sentence. We review
a revocation sentence under the same “deferential abuse-of-discretion” standard we
apply to initial sentencing proceedings, considering both “the procedural soundness
of the district court’s decision and the substantive reasonableness of the sentence
imposed.” United States v. Thunder, 553 F.3d 605, 607 (8th Cir. 2009). However,
because Grant failed to raise his procedural objections at sentencing, we review them
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for plain error only. Fed. R. Crim. P. 52(b); see also United States v. Townsend, 618
F.3d 915, 918 (8th Cir. 2010). To succeed under plain error review, Grant must show:
“(1) an error; (2) that is plain; and (3) that affects substantial rights. Townsend, 618
F.3d at 918. “An error affects substantial rights if there is a ‘reasonable probability’
that in its absence a more favorable sentence would have been imposed.” United
States v. Means, 365 F. App’x 720, 722 (8th Cir. 2010) (per curiam) (unpublished)
(quoting United States v. Pirani, 406 F.3d 543, 552 (8th Cir. 2005)).
Grant alleges the district court procedurally erred by failing to consider the
relevant section 3553(a) factors and failing to explain the rationale underlying its
sentence. Although a district court must consider the factors set forth in section
3553(a), “there is no requirement that the district court make specific findings relating
to each of the factors considered.” United States v. Franklin, 397 F.3d 604, 606 (8th
Cir. 2005) (internal quotation marks and citation omitted). Moreover, we have
consistently held a district court need not “mechanically recite the § 3553(a) factors
when, as here, it is clear from the record that the court properly considered those
factors.” United States v. McKanry, 628 F.3d 1010, 1021 (8th Cir. 2011). “All that
is required is evidence that the court has considered the relevant matters,” Franklin,
397 F.3d at 607 (internal quotation marks and citation omitted), and we find such
evidence present here.
The record shows the district court was familiar with Grant’s repeated
violations of the conditions of his supervised release. In fact, this was the third time
the court had sentenced Grant after revocation of a term of supervised release. See,
e.g., id. (“It also is worth noting that the judge who presided over [defendant’s]
sentence after revocation of supervised release was the same judge who imposed
[defendant’s] initial sentence; therefore, at the revocation hearing, the district court
was aware of [defendant’s] history and characteristics.”) (citing 18 U.S.C.
§ 3553(a)(1)); Means, 365 F. App’x at 723 (considering the district court’s familiarity
with defendant’s repeated violations of his release conditions as part of its review for
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procedural soundness). In addition, the revocation transcript indicates the court
inquired about Grant’s family status, his substance abuse problems, and his ongoing
involvement in illegal criminal activities. See 18 U.S.C. § 3553(a)(1). Lastly, the
record shows the court considered Grant’s request for a below-Guidelines sentence
and his arguments such a sentence would still¡ provide a just punishment for the
offense. See § 3553(a)(2). Thus, while we acknowledge the district court’s
sentencing discussion was brief and made no mention of the statutory sentencing
factors, under our limited scope of review, we conclude Grant has not shown plain
error.
Applying a deferential abuse-of-discretion standard, we also conclude the
sentence imposed by the district court is not substantively unreasonable. The sentence
is within the properly calculated advisory Guidelines range, see U.S.S.G. § 7B1.4(a),
and is therefore presumed reasonable. United States v. Perkins, 526 F.3d 1107, 1110
(8th Cir. 2008). Further, the sentence is based on the court’s consideration of the
relevant section 3553(a) factors, including Grant’s multiple violations of his release
conditions, his substance abuse, and his continued engagement in the same pattern of
illegal conduct. See, e.g., United States v. Young, 640 F.3d 846, 849 (8th Cir. 2011)
(per curiam) (upholding a within-Guidelines revocation sentence as reasonable based
on defendant’s numerous failures to comply with the conditions of his supervised
release); Means, 365 F. App’x at 723 (concluding the revocation sentence was
reasonable given defendant’s “consistent inability to adhere to the requirements of his
supervised release[,] . . . the extent of [his] violations[,] and the substance abuse which
connects them to his original underlying offense”); United States v. Palmer, 278 F.
App’x 702, 705 (8th Cir. 2008) (unpublished) (per curiam) (finding a sentence
reasonable where the court properly weighed the section 3553(a) factors and
considered defendant’s repeated violations of his release conditions and his continued
engagement in illegal activities). Having carefully considered the record, we are

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confident the district court acted well within its discretion in sentencing Grant to thirty
months’ imprisonment.
Accordingly, we affirm the district court’s judgment.
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