United States v. Dshaun Butler

Filing

OPINION FILED - THE COURT: William Jay Riley, Michael J. Melloy and Jane Kelly AUTHORING JUDGE:William Jay Riley (PUBLISHED) [4127262] [13-1923]

United States Court of Appeals
For the Eighth Circuit
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No. 13-1923
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Dshaun J. Butler
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: November 18, 2013
Filed: February 26, 2014
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Before RILEY, Chief Judge, MELLOY and KELLY, Circuit Judges.
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RILEY, Chief Judge.
Dshaun J. Butler pled guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Butler appeals the sentence the
district court1 imposed, arguing the district court “erred procedurally by failing to
1

The Honorable David Gregory Kays became Chief Judge of the United States
District Court for the Western District of Missouri on January 4, 2014.

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adequately explain its basis” for varying upward from Butler’s advisory United States
Sentencing Guidelines (Guidelines) range. We disagree and affirm.
I.

BACKGROUND
On February 8, 2012, Butler pled guilty to being a felon in possession of a
firearm. Before sentencing, the United States Probation Office prepared a presentence
investigation report calculating an advisory Guidelines range of 46 to 57 months
imprisonment (level 17, category V). Butler objected to the inclusion of a certain state
conviction in his criminal history calculation because that conviction was vacated and
subject to de novo review in state court. The district court overruled Butler’s
objection and sentenced Butler to 57 months imprisonment. In imposing Butler’s
sentence, the district court stated it considered varying upward, but determined 57
months was the appropriate sentence for Butler based upon the district court’s analysis
of the 18 U.S.C. § 3553(a) sentencing factors. Butler timely appealed his sentence.
While Butler’s initial appeal was pending, we granted his unopposed motion
for remand to the district court for resentencing in light of the state court’s dismissal
of the contested conviction. On remand, the district court—accounting for the state
court dismissal—recalculated Butler’s advisory Guidelines range to be 37 to 46
months imprisonment (level 17, category IV). After considering Butler’s arguments
and the lower advisory Guidelines range, the district court varied upward and again
sentenced Butler to 57 months imprisonment based upon the 18 U.S.C. § 3553(a)
sentencing factors. Butler appeals.
II.

DISCUSSION
“After settling on the appropriate sentence, [a district court] must adequately
explain the chosen sentence to allow for meaningful appellate review and to promote
the perception of fair sentencing.” Gall v. United States, 552 U.S. 38, 50 (2007); see
also 18 U.S.C. § 3553(c) (“The court, at the time of sentencing, shall state in open
court the reasons for its imposition of the particular sentence.”). “[F]ailing to
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adequately explain the chosen sentence—including an explanation for any deviation
from the Guidelines range”—constitutes procedural error. Gall, 552 U.S. at 51.
Butler argues the district court committed procedural error at resentencing by
failing “to adequately explain its basis for imposing the same sentence despite
[Butler’s] reduced guideline range.” In Butler’s view, his receipt of the same sentence
on remand “create[s] an impression that [he] was sentenced more harshly following
his successful appeal.” Because Butler did not raise this objection at sentencing, we
review for plain error. See United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005)
(en banc); Fed. R. Crim. P. 52(b). “Under plain error review, the defendant must
show: (1) an error; (2) that is plain; and (3) that affects substantial rights.” United
States v. Vaughn, 519 F.3d 802, 804 (8th Cir. 2008). The “appellate court may then
exercise its discretion to notice a forfeited error . . . if . . . the error seriously affects
the fairness, integrity, or public reputation of judicial proceedings.” Johnson v. United
States, 520 U.S. 461, 467 (1997) (quoting United States v. Olano, 507 U.S. 725, 732
(1993)) (internal marks omitted).
Having thoroughly reviewed the record, we are satisfied the district court
committed no error, plain or otherwise, in imposing or explaining Butler’s sentence.
“In explaining the sentence the district court need only ‘set forth enough to satisfy the
appellate court that [the district court] 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)). The district court did that and more.
After reviewing the record from the first sentencing and considering the parties’
respective arguments regarding the appropriate sentence on remand, the district court
articulated specific reasons for varying upward and imposing the same 57-month
sentence, “even though the guidelines ha[d] lessened for [Butler].” In imposing
Butler’s sentence on remand, the district court expressly reconsidered all of the 18
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U.S.C. § 3553(a) sentencing factors as applied to Butler, including Butler’s violent
criminal history, lack of impulse control, failure to contribute to society or support his
children, and his “fundamental lack of respect for law.” The district court also
considered the nature of Butler’s crime, the need for deterrence, and the need to
protect the public.
The district court then concluded 57 months
imprisonment—though now an upward variance from the Guidelines—remained the
appropriate sentence because the district court’s reassessment of the 18 U.S.C.
§ 3553(a) factors “came out the same” as its analysis for the initial sentencing. No
further explanation was required.
And there is absolutely nothing in the record to “create an impression” that the
district court varied upward in retaliation for Butler appealing his initial sentence. To
the contrary, at Butler’s initial sentencing, the district court considered varying
upward from the advisory Guidelines range based on its thorough analysis of the
18 U.S.C. § 3553(a) factors, but determined 57 months was the appropriate sentence
to meet the goals of sentencing under the circumstances. That the district court
reached the same conclusion and imposed the same sentence based upon its
reassessment of those same statutory factors following remand does not suggest
Butler’s resentencing was retaliatory or otherwise unfair.
III.

CONCLUSION
We affirm the judgment of the district court.
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