United States v. Kelley Dull

Filing

PER CURIAM OPINION FILED - THE COURT: Steven M. Colloton, Raymond W. Gruender and Bobby E. Shepherd (UNPUBLISHED) [4388263] [14-3766]

United States Court of Appeals
For the Eighth Circuit
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No. 14-3766
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Kelley Dull
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 16, 2015
Filed: April 14, 2016
[Unpublished]
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Before COLLOTON, GRUENDER, and SHEPHERD, Circuit Judges.
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PER CURIAM.
The district court1 sentenced Kelley Dull to 12 months’ imprisonment, with no
term of supervised release to follow, after Dull violated the conditions of her

1

The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.

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supervised release. Dull argues that the district court abused its discretion by
considering factors from 18 U.S.C. § 3553(a)(2)(A), which are not listed as factors for
the district court to consider in post-revocation sentencing under 18 U.S.C. § 3583(e).
Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
Dull pled guilty to wire fraud, and the district court sentenced her to six
months’ imprisonment and three years of supervised release. On July 12, 2013, Dull
began her term of supervision. On September 24, 2014, the United States Probation
Office filed a violation report alleging that Dull had failed to pay restitution and had
unlawfully used a controlled substance and alcohol. Dull stipulated to the three
violations of her supervised release. The district court requested recommendations
from the parties. The government requested a sentence of 12 months’ imprisonment,
and Dull requested that the court either continue her supervised release or impose a
sentence at the lower end of the United States Sentencing Commission’s Chapter 7
policy guideline range of three to nine months. After hearing arguments from both
parties, the district court sentenced Dull to 12 months’ imprisonment with no
supervised release to follow.
Dull did not challenge the district court’s consideration of § 3553(a)(2)(A), yet
she argues that our standard of review should be de novo because we are confronted
with a question of law, specifically whether the district court misapplied the guidelines
by considering § 3553(a)(2)(A) factors, which are not listed in § 3583(e).
Generally, we review a revocation sentence under the same “deferential abuse-ofdiscretion” standard that we apply to initial sentencing proceedings, evaluating both
the substantive reasonableness of the sentence and procedural soundness of the district
court’s decision. United States v. Young, 640 F.3d 846, 848 (8th Cir. 2011) (per
curiam). An error of law is an abuse of discretion. United States v. Fonder, 719 F.3d
960, 961 (8th Cir. 2013). However, where the defendant fails to raise procedural
objections at sentencing, we review a claim of procedural error for plain error only.
United States v. Miller, 557 F.3d 910, 916 (8th Cir. 2009).
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“To establish plain error, [Dull] must prove that (1) there was error, (2) the error
was plain, and (3) the error affected [her] substantial rights.” Id. (citing United States
v. Olano, 507 U.S. 725, 732 (1993)). We will exercise our discretion to correct an
unpreserved procedural error only if the error “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” Olano, 507 U.S. at 732
(quoting United States v. Young, 470 U.S. 1, 15 (1985)). “An error affects a
substantial right if the error was prejudicial.” Miller, 557 F.3d at 916 (citing Olano,
507 U.S. at 734). An error is prejudicial where there is “a reasonable probability that
the defendant would have received a lighter sentence but for the error.” Id. (citing
United States v. Pirani, 406 F.3d 543, 552 (8th Cir. 2005) (en banc)).
Dull contends that the district court erred by mentioning § 3553(a)(2)(A) factors
– the seriousness of the violation, the need to promote respect for the law, and the
need to provide just punishment for the offense – in its rationale for the sentence.
Although § 3583(e) omits these factors, consideration of the factors is not explicitly
prohibited. We acknowledge that there is a circuit split as to whether post-revocation
sentencing under § 3583(e) permits consideration of the factors in § 3553(a)(2)(A).
See United States v. Clay, 752 F.3d 1106, 1108-09 (7th Cir. 2014) (discussing the
circuit split). Nevertheless, this court need not address the split in this case because,
unlike other circuits, we have never held that a district court’s consideration of
§ 3553(a)(2)(A) factors when sentencing under § 3583(e) is a procedural error. Thus,
even assuming it was error, the error is not plain.
Furthermore, the district court’s reference to these factors is inconsequential
because the district court imposed Dull’s sentence after evaluating her conduct under
several § 3553(a) factors that § 3583(e) specifically enumerates. In particular, the
court considered the nature and circumstances of Dull’s offense; Dull’s history and
characteristics; the need for her sentence to afford adequate deterrence and protect the
public from future crimes; and that efforts to provide treatment to her while on
supervised release have not been successful or made an impact. See § 3553(a)(1);
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§ 3553(a)(2)(B)-(D); see also § 3583(e) (listing § 3553(a)(1), (a)(2)(B),(a)(2)(C), and
(a)(2)(D) as factors that a court is to consider in post-revocation sentencing).
Moreover, the district court’s reference to the seriousness of the violation, as
well as the need to promote respect for the law and provide just punishment for the
offense, did not affect Dull’s substantial rights. These § 3553(a)(2)(A) factors did not
predominate the court’s analysis, and the court sufficiently considered the permissible
§ 3553(a) factors when imposing Dull’s sentence. Dull has not satisfied her burden
to show that if the district court had not referenced the § 3553(a)(2)(A) factors, there
is a reasonable probability that Dull would have received a more favorable sentence.
See United States v. Means, 365 F. App’x. 720, 723 (8th Cir. 2010) (unpublished per
curiam) (citing Pirani, 406 F.3d at 553).
Accordingly, we affirm the judgment of the district court.
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