United States v. Donald Cowen

Filing

PER CURIAM OPINION FILED - THE COURT: James B. Loken, Steven M. Colloton and Duane Benton (UNPUBLISHED) [4095913] [13-1333]

United States Court of Appeals
For the Eighth Circuit
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No. 13-1333
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United States of America,
lllllllllllllllllllll Plaintiff - Appellee,
v.
Donald K. Cowens,
lllllllllllllllllllll Defendant - Appellant.
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: September 23, 2013
Filed: November 14, 2013
[Unpublished]
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Before LOKEN, COLLOTON, and BENTON, Circuit Judges.
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PER CURIAM.
Donald Cowens pleaded guilty to unlawful possession of a firearm as a
previously convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The

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district court1 sentenced Cowens to ninety-six months’ imprisonment, which was at
the top of the advisory guideline range. Cowens appeals the sentence, and we affirm.
On September 3, 2011, police officers in Kansas City saw Cowens and another
man make a possible hand-to-hand drug transaction. The officers approached
Cowens and told him that they would conduct a pat-down search. Cowens resisted,
struck one officer in the face with a closed fist, and fled on foot. Officers arrested
Cowens after a brief chase. The officers then searched Cowens and found a loaded
revolver in a backpack that he was carrying. Cowens claimed that shortly before his
contact with the officers, he discovered the firearm inside a bush and took possession
of the weapon to prevent children in the area from finding and mishandling it.
A federal grand jury returned a one-count indictment charging Cowens with
unlawful possession of a firearm as a previously convicted felon, in violation of
18 U.S.C. §§ 922(g)(1) and 924(a)(2). Cowens pleaded guilty, and the probation
office recommended an advisory guideline sentencing range of seventy-seven to
ninety-six months’ imprisonment based on a total offense level of twenty-one and
criminal history category of VI.
The district court adopted the recommended advisory range and then
considered an appropriate sentence pursuant to 18 U.S.C. § 3553(a). The court
discussed the nature and circumstances of Cowens’s offense, Cowens’s history and
characteristics (namely, his six prior felony convictions and combative behavior
toward law enforcement officers and other authority figures), and the need for a
sentence to promote respect for the law. The court acknowledged Cowens’s recent
participation in community programs, and “encourage[d] [Cowens] to continue on
that journey.” The court also mentioned deterrence, and the need to protect the public

1

The Honorable Greg Kays, United States District Judge for the Western
District of Missouri.
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from Cowens’s future crimes. Based upon all of these factors, the district court
imposed a sentence of ninety-six months’ imprisonment, to be followed by three years
of supervised release.
On appeal, Cowens argues that the sentence was greater than necessary and
substantively unreasonable. In particular, Cowens asserts that the district court failed
to give adequate weight to his troubled past and his recent participation in community
programs. Cowens also argues that a shorter sentence would be sufficient to achieve
the statute’s purposes of affording general and specific deterrence. He cites a
recidivism-related study for the proposition that, given his age, the likelihood of his
reoffending will be greatly reduced long before the expiration of a ninety-six month
term.
We review the reasonableness of a sentence for abuse of discretion, Gall v.
United States, 552 U.S. 38, 41 (2007), and a sentence within the advisory guideline
range is presumptively reasonable. Rita v. United States, 551 U.S. 338, 341 (2007);
United States v. Miles, 499 F.3d 906, 909 (8th Cir. 2007). Given the nature and
seriousness of Cowens’s offense, his history of combativeness toward authority
figures, his pattern of reoffending after prior prison sentences, and the need to protect
the public from Cowens’s future crimes, the sentence imposed by the district court
was not unreasonable. The court was not required to infer from a general study of
recidivism that Cowens himself posed a reduced risk of reoffending because of his
age. In any event, even accepting Cowens’s suggestion about the likelihood of
recidivism, and even crediting that his recent participation in community programs
indicated some degree of rehabilitation, other factors such as the need for a sentence
to reflect the seriousness of the offense, to promote respect for the law, to provide just
punishment, and to afford adequate deterrence militated in favor of the sentence
imposed. The district court’s decision to place greater emphasis on factors that
favored a sentence within the advisory range than on other factors that might have

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counseled a more lenient sentence is a permissible exercise of discretion under
§ 3553(a). See United States v. Ruelas-Mendez, 556 F.3d 6655, 658 (8th Cir. 2009).
The judgment of the district court is affirmed.
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