United States v. Erwin Stamper

Filing

PER CURIAM OPINION FILED - THE COURT: Roger L. Wollman, Diana E. Murphy and Raymond W. Gruender (UNPUBLISHED) Opinion Filed [4152333] [13-2573]

United States Court of Appeals
For the Eighth Circuit
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No. 13-2573
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Erwin Shane Stamper
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
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Submitted: March 10, 2014
Filed: May 9, 2014
[Unpublished]
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Before WOLLMAN, MURPHY, and GRUENDER, Circuit Judges.
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PER CURIAM.
Erwin Shane Stamper pled guilty to one count of assaulting an officer or
employee of the United States in violation of 18 U.S.C. § 111(a)(1) and (b), and was
sentenced to 168 months to be served consecutively to an 84 month sentence imposed
for a prior assault that occurred in August 2009. On appeal Stamper argues that the

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district court1 erred by imposing a consecutive sentence rather than concurrent terms.
We affirm.
Stamper was indicted in September 2011 for assaulting a fellow inmate while
incarcerated at a federal correctional institution in Forrest City, Arkansas in August
2009, in violation of 18 U.S.C. § 113(a)(6). The victim had been beaten so severely
in that attack that he needed facial reconstructive surgery and a tracheostomy; he
continues to suffer from memory loss from his brain injury. Following the indictment
Stamper was transferred from the federal correctional institution in California where
he had been housed, to a federal detention center in Dallas County, Arkansas to await
arraignment.
While in pretrial detention in Dallas County in March 2012, Stamper was
involved in another assault. He and several other inmates had been drinking
homemade wine in the cell of inmate Mike Meilke when a fight broke out. Two
prison guards entered the cell to break up the fight, but were forced to retreat for their
own safety. After positioning himself behind the door of the cell, Stamper tried to get
a guard's attention with the help of another inmate. When a guard responded and
entered the cell, Stamper stabbed him in the neck with a metal shank. Surveillance
video showed the inmates laughing and hugging each other after the attack.
In August 2012 a grand jury returned an indictment against Stamper for two
counts stemming from the Dallas County attack: assaulting an officer or employee of
the United States in violation of 18 U.S.C. § 111(a)(1) and (b), and possession of a
prohibited object in prison in violation of 18 U.S.C. § 1791(a)(2). Stamper pled guilty
to the first count in March 2013. The plea agreement recommended a prison sentence
of 84 months to be served consecutively with any sentence received from the August

1

The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas.
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2009 assault. On the same day Stamper pled guilty to the August 2009 assault; the
plea agreement in that case also recommended a consecutive 84 month prison
sentence. Both plea agreements provided that the district court was not bound by the
sentencing recommendations, and they specified that Stamper would have the
opportunity to withdraw his plea if the court rejected an agreement under Federal Rule
of Criminal Procedure 11(c)(5).
Sentencing in both cases took place on July 12, 2013. Judge James M. Moody
presided over the sentencing for the August 2009 assault. He rejected the plea
agreement and gave Stamper the option of withdrawing his plea or proceeding under
it despite the possibility of a less favorable sentence. Stamper persisted with his plea,
and the district court sentenced him to 108 months imprisonment to be served
consecutively to any sentence received for the March 2012 assault. Upon discovery
of an error in calculating the applicable sentencing guideline range, the 108 month
sentence was later amended to an 84 month consecutive prison term. Stamper has not
appealed from this sentence.
At the sentencing hearing for the March 2012 assault now under review, Judge
Webber Wright determined that the applicable sentencing guideline range was 151 to
188 months. She also explained that she was "not inclined" to accept the 84 month
sentence in the plea agreement because of Stamper's violent criminal history. Counsel
for the government responded that this plea agreement was drafted in conjunction with
that for the August 2009 assault and explained that if the sentences were imposed
consecutively, the combined fourteen years would be acceptable to both the
government and the victims. Stamper argued that if both cases had been charged in
a single indictment, the proper guideline range would have been 151 to 188 months
for each count, which if applied concurrently would have led to a sentence of 14 to 16
years, an equivalent sentence to that created by the consecutive 84 month sentences
agreed to by the parties. Stamper acknowledged that if the charges had been brought
in one indictment, the court would have had the discretion to run the sentences for
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each count concurrently or consecutively, but he argued that the 18 U.S.C. § 3553(a)
factors should "tip[] the balance in favor of concurrent sentencing."
The district court concluded that in light of Stamper's "very serious and violent
criminal history[,] . . . an 84-month sentence, even one consecutive to the one Judge
Moody has imposed[,] is insufficient under all the sentencing factors listed in . . .
Section 3553(a)." It therefore rejected the plea agreement and asked the parties to
present argument on an appropriate sentence and whether it should be concurrent or
consecutive to that for the August 2009 assault. Counsel for Stamper emphasized his
client's difficult childhood, history of mental health issues, and the fact that his crime
involved "a bunch of drunk kid inmates working together on a scenario," and asked
for a 108 month sentence to be served consecutively to the sentence that had been
imposed by Judge Moody. The government declined to take a position on a sentence
outside of the plea agreement.
After taking into consideration the presentence report, defense counsel's
argument, and the § 3553(a) factors, the district court sentenced Stamper to 168
months imprisonment to be served consecutively to the sentence imposed by Judge
Moody, three years of supervised release to run concurrently with the term Judge
Moody had imposed, and a $100 special assessment. In explaining its within
guideline range sentence, the court stated that it found Stamper to be "a very violent
individual," and that it had "no confidence that if [it] gave him a shorter sentence that
he would not be released and cause additional harm to people in the free world." After
a short recess to consult with his attorney, Stamper chose to maintain his guilty plea.
The court accepted the plea and imposed the 168 month consecutive sentence.
Stamper now appeals, arguing that the district court erred by imposing a consecutive
sentence.
When either "multiple terms of imprisonment are imposed on a defendant at the
same time," or "a term of imprisonment is imposed on a defendant who is already
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subject to an undischarged term of imprisonment," a district court retains broad
authority to impose the terms either consecutively or concurrently. 18 U.S.C.
§ 3584(a); see also United States v. Meyers, 401 F.3d 959, 961 (8th Cir. 2005). In
determining whether to impose a concurrent or consecutive sentence, a district court
"shall consider . . . the factors set forth in section 3553(a)." Id. § 3584(b). Among the
factors the court must consider are "the nature and circumstances of the offense and
the history and characteristics of the defendant," "the need for the sentence imposed
. . . to protect the public from further crimes," and the relevant sentencing guidelines
as issued by the Sentencing Commission. Id. § 3553(a). We review the district court's
ultimate decision to impose a consecutive rather than concurrent sentence for
reasonableness. United States v. Rutherford, 599 F.3d 817, 820 (8th Cir. 2010). In
making this determination we review the district court's factual findings for clear error
and the application of the sentencing guidelines de novo. Id.
We conclude that the district court properly applied the statutory direction in
§ 3584(b) to consider the § 3553(a) factors in imposing a consecutive sentence here.
See United States v. Fight, 625 F.3d 523, 525–26 (8th Cir. 2010). The record shows
that the district court considered the recommended guideline range and properly
weighed the presentence report, argument of counsel, and the § 3553(a) factors before
imposing a consecutive sentence. See Rutherford, 599 F.3d at 821. In reaching its
decision the district court cited Stamper's history of violent conduct, the seriousness
of the instant offense, and the need to protect the public. The court expressed concern
that Stamper "continues to commit horrible crimes," and expressed its hope that this
sentence "will be . . . sufficiently long for Mr. Stamper to mature a bit," and "reflect
on his violent nature." These factors are all relevant in a proper § 3553(a) analysis.
Stamper's sole argument on appeal is that the two assaults were related and thus
sentencing should have been guided by § 5G1.2 of the sentencing guidelines, which
provides that sentences on multiple counts of conviction shall run concurrently, "[i]f
the sentence imposed on the count of conviction carrying the highest statutory
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maximum is adequate to achieve the total punishment." U.S.S.G. § 5G1.2(c). This
argument is unpersuasive here, however. Even where the guidelines recommend
concurrent sentencing, "the district court has broad statutory authority, pursuant to 18
U.S.C. § 3584, to impose consecutive terms." Fight, 625 F.3d at 525; see also United
States v. Jarvis, 606 F.3d 552, 554 (8th Cir. 2010) ("[T]he guidelines do not control
whether sentences run concurrently or consecutively."). Based on the record here and
the district court's sentencing analysis, we conclude that its imposition of a
consecutive sentence was substantively reasonable.
Accordingly, the judgment of the district court is affirmed.
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