United States v. Keith Overbey

Filing

OPINION FILED - THE COURT: William Jay Riley, Lavenski R. Smith and Steven M. Colloton AUTHORING JUDGE:William Jay Riley (PUBLISHED) [3962813] [12-1227]

United States Court of Appeals
For the Eighth Circuit
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No. 12-1227
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Keith William Overbey
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - Cape Girardeau
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Submitted: September 17, 2012
Filed: October 12, 2012
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Before RILEY, Chief Judge, SMITH and COLLOTON, Circuit Judges.
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RILEY, Chief Judge.
Keith William Overbey was convicted of aiding and abetting the use, carrying,
and brandishing of a firearm in furtherance of an armed bank robbery, in violation of
18 U.S.C. §§ 2 and 924(c)(1), and being a felon in possession of a firearm, in violation

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of 18 U.S.C. § 922(g)(1). In sentencing Overbey, the district court1 varied upward
from the advisory United States Sentencing Guidelines (Guidelines) range to 240
months imprisonment. Overbey appeals his sentence as procedurally and
substantively unreasonable. We affirm.
I.

BACKGROUND
On December 14, 2010, Teresa Aguilera robbed Peoples Bank of Altenburg,
Missouri, using a rifle to threaten bank employees. Overbey, Aguilera’s brother,
helped plan the robbery, drove the getaway car, and supplied Aguilera with the rifle
and other items Aguilera used during the robbery. After the robbery, Overbey gave
the rifle to his son, Keith Ryan Overbey (Ryan), with instructions to throw the rifle
in the river.
On September 27, 2011, a federal grand jury charged Overbey with (1) aiding
and abetting armed bank robbery, in violation of 18 U.S.C. §§ 2 and 2113(a) and (d)
(Count I); (2) aiding and abetting the use, carrying, and brandishing of a firearm
during a bank robbery (Count II); and (3) being a felon in possession of a firearm
(Count IV). At Overbey’s trial, Ryan testified Overbey admitted his role in the
robbery and told Ryan to dispose of the rifle. Overbey’s ex-girlfriend, Ida Mangrum,
reported Overbey called her shortly before his trial and asked her to tell Ryan not to
testify. The jury found Overbey guilty of Counts II and IV and not guilty of Count
I. The district court accepted the guilty verdict on Count IV and rejected the verdicts
on Counts I and II as inconsistent, instructing the jurors to continue deliberating.
After the jury indicated it could not agree on Counts I and II, the district court
declared a mistrial on those counts. On November 29, 2011, pursuant to a plea
agreement, Overbey pled guilty to Count II in exchange for dismissing Count I.

1

The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the
Eastern District of Missouri.
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The presentence investigation report (PSR) calculated a total offense level of
twenty-four, which included an enhancement for obstruction of justice based on
Overbey’s attempt to dissuade Ryan from testifying, and a criminal history category
of IV. This calculation resulted in a Guidelines range of 77 to 96 months on Count
IV and a consecutive Guidelines sentence of 84 months (the statutory mandatory
minimum) on Count II, for a total range of 161 to 180 months imprisonment.
The district court adopted, without objection from either party, the PSR’s
factual findings and Guidelines calculation and then varied upward to a sentence of
240 months imprisonment. The district court found the Guidelines calculation
understated Overbey’s criminal history because the calculation did not include several
convictions and because Overbey had “been in and out of prison all of [his] adult life.”
The court explained Overbey “seem[ed] to be incorrigible” and had “shown no
remorse.” The district court also expressed concern with Overbey’s conduct toward
his son and sister, noting Ryan “had tears coming down his face because he had to
testify against his father because his father wouldn’t man up and admit that he was
guilty” and his sister “was terribly emotional and crying.” The district court added,
“Overbey’s attempt to . . . get them not to testify” was “downright rotten.” The
district court stated it had considered all of the 18 U.S.C. § 3553(a) sentencing factors,
in particular the nature and circumstances of the
offense[,] . . . [Overbey’s] criminal history and [his] lack of
remorse, . . . the seriousness of the offense, the need to promote respect
for the law and to provide just punishment in this case, also to afford
adequate deterrence to [Overbey’s] criminal conduct and to protect the
public from further criminal activity which [Overbey had] given no
indication that will dissipate in any respect.
The district court also expressed concern for “the sentencing objectives of just
punishment and general deterrence and incapacitation.”

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Overbey appeals his sentence, asserting procedural error (inadequate
explanation) and substantive unreasonableness.
II.

DISCUSSION
In reviewing Overbey’s sentence, we first “ensure that the district court
committed no significant procedural error.” Gall v. United States, 552 U.S. 38, 51
(2007). If the district court did not commit any procedural error, we “then consider
the substantive reasonableness of the sentence imposed under an abuse-of-discretion
standard.” Id. “We review the district court’s factual determinations at sentencing for
clear error and its application of the Guidelines de novo.” United States v. Sayles, 674
F.3d 1069, 1072 (8th Cir. 2012).
A.
Procedure
Overbey claims the district court committed procedural error by failing to
explain his sentence adequately. See Gall, 552 U.S. at 51 (stating procedural error
includes “failing to adequately explain the chosen sentence”). Because Overbey did
not object at sentencing to the district court’s explanation, we review Overbey’s claim
for plain error. See United States v. Molnar, 590 F.3d 912, 914 (8th Cir. 2010).
“In explaining the sentence the district court need only ‘set forth enough to
satisfy the appellate court that [it] has considered the parties’ arguments and has a
reasoned basis for exercising [its] own legal decisionmaking authority.’” United States
v. Moore, 565 F.3d 435, 437 (8th Cir. 2009) (quoting Rita v. United States, 551 U.S.
338, 356 (2007)). “[A]ll that is generally required to satisfy the appellate court is
evidence that the district court was aware of the relevant factors.” United States v.
Perkins, 526 F.3d 1107, 1110 (8th Cir. 2008). Here, the district court stated it
considered the 18 U.S.C. § 3553(a) factors, discussing several in detail. The district
court did not commit any procedural error, plain or otherwise.

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B.
Substantive Reasonableness
Overbey also contends his sentence is substantively unreasonable because
(1) the district court’s statement that Overbey had been “in and out of prison all of
[his] adult life” was inaccurate and inappropriate; (2) Overbey’s prior convictions
excluded from the Guidelines calculation did not justify the variance; and (3) the
district court should not have varied upward to such an extent based on Overbey’s
conduct toward his son Ryan because the Guidelines already accounted for that
conduct through the obstruction of justice enhancement.
Overbey has an extensive criminal history. Between 1987, when Overbey was
eighteen years old, and the instant offenses, Overbey had been convicted of sixteen
different crimes. Eleven of these offenses, including five felonies, did not count
toward Overbey’s Guidelines calculation. Overbey served some short periods in jail,
received suspended sentences, and was placed on probation numerous times. The
district court did not clearly err in finding Overbey’s Guidelines calculation
understated his criminal history and he had been “in and out of prison all of [his] adult
life.” The district court did not abuse its discretion in varying upward on either
ground. See United States v. Barrett, 552 F.3d 724, 726 (8th Cir. 2009) (“Section
3553(a) allows courts to vary upward based on an underrepresented criminal history
or recidivism.”).
Nor did the district court abuse its discretion in basing the variance, in part, on
Overbey’s conduct toward his son. “‘[W]e previously have allowed variances based
on factors already taken into account by the advisory [G]uidelines,’ where the
Guidelines do not fully account for those factors, or ‘when a district court applies
broader § 3553(a) considerations in granting the variance.’” United States v. Richart,
662 F.3d 1037, 1052 (8th Cir. 2011) (quoting United States v. Jones, 509 F.3d 911,
914 (8th Cir. 2007)). Overbey instructed Ryan to dispose of the rifle used in the
robbery and pressured Ryan not to testify. The district court based the variance on
“broader § 3553(a) considerations,” id., including “the nature and circumstances of
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the offense,” Overbey’s criminal history, his lack of remorse, “the seriousness of the
offense, the need to promote respect for the law and to provide just punishment in this
case,” and to deter and “protect the public from further criminal activity which
[Overbey had] given no indication that will dissipate in any respect.” The district court
did not abuse its considerable discretion in varying upward to 240 months
imprisonment.
III.

CONCLUSION
Because we conclude the district court did not err or abuse its discretion in
sentencing Overbey to 240 months imprisonment, we affirm.
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