United States v. Joe Nathan Michael

Filing

PER CURIAM OPINION FILED - THE COURT: ROGER L. WOLLMAN, C. ARLEN BEAM and JAMES B. LOKEN (UNPUBLISHED) [3931980] [11-2738]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 11-2738
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United States of America,
Appellee,
v.
Joe Nathan Michael,
Appellant.

*
*
*
* Appeal from the United States
* District Court for the
* District of Minnesota.
*
* [UNPUBLISHED]
*
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Submitted: May 14, 2012
Filed: July 16, 2012
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Before WOLLMAN, BEAM, and LOKEN, Circuit Judges.
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PER CURIAM.
Joe Nathan Michael pled guilty to one count of bank robbery, in violation of
18 U.S.C. § 2113(a). The district court1 sentenced him to 120 months’ imprisonment,
a 31-month downward departure from the United States Sentencing Guidelines
(Guidelines) range. Michael appeals, arguing that his sentence is substantively
unreasonable. We affirm.

1

The Honorable Michael J. Davis, Chief Judge, United States District Court for
the District of Minnesota.

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Date Filed: 07/16/2012 Entry ID: 3931980

On May 27, 2010, Michael entered the TCF Bank located inside the Cub Foods
store in Fridley, Minnesota. He was not armed, but he was intoxicated. He handed
the teller a note, which she did not immediately understand because it contained
spelling and grammatical errors. Michael indicated that he had a gun and demanded
money. The teller complied with Michael’s demand, giving him cash that included
bait bills and a Global Positioning System (GPS) pack. He took the money, left the
bank, and walked to a bus stop a block away.
Shortly thereafter, law enforcement officers apprehended Michael and
recovered the cash, bait bills, and GPS pack. The bank teller identified Michael as
the robber. He was taken into custody and charged with bank robbery. Following a
mental health evaluation, Michael was found competent to stand trial. He pled guilty
on March 30, 2011.
Michael’s offense level was 29, his criminal history category was VI, and thus
his advisory Guidelines range was 151 to 188 months’ imprisonment.
Michael requested a downward variance because his psychological evaluation
found that he has low-average intellectual functioning and because he has a history
of alcohol abuse related to his criminal activity. The government requested a
sentence within the Guidelines’ range. Having considered Michael’s presentence
investigation report, the written submission and oral arguments of counsel, Michael’s
statement, and the factors set forth in 18 U.S.C. § 3553(a), the district court sentenced
Michael to 120 months’ imprisonment, followed by three years of supervised release.
It also recommended drug and alcohol treatment, psychological and educational
programs, anger management programs, and any other programs that might be
beneficial.

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Date Filed: 07/16/2012 Entry ID: 3931980

Michael contends that his sentence is substantively unreasonable because it is
greater than necessary to achieve the goals of sentencing outlined in 18 U.S.C.
§ 3553(a). We review the substantive reasonableness of the sentence under an abuse
of discretion standard, considering the totality of the circumstances. Gall v. United
States, 552 U.S. 38, 51 (2007).
We conclude that the district court did not abuse its discretion in sentencing
Michael. “Where a district court has sentenced a defendant below the advisory
guidelines range, it is nearly inconceivable that the court abused its discretion in not
varying downward still further.” United States v. White, 675 F.3d 1106, 1110 (8th
Cir. 2012) (quoting United States v. McKanry, 628 F.3d 1010, 1022 (8th Cir. 2011)
(internal quotation and citation omitted)). This is not that most unusual case. A
review of the sentencing transcript shows that the court was aware of Michael’s long
history of substance abuse and criminal acts, as well as his repeated and unsuccessful
attempts to complete substance abuse treatment. Having read Michael’s sentencing
memorandum, the court considered Michael’s childhood, mental health, and the
impact of alcohol use on his criminal history. In light of the seriousness of the
offense and Michael’s status as a career offender, we cannot say that the district court
abused its discretion in declining to vary downward further than it chose to.
The sentence is affirmed.
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Date Filed: 07/16/2012 Entry ID: 3931980