United States v. Keniko Duane Bland

Filing

PER CURIAM OPINION FILED - THE COURT: Bobby E. Shepherd, C. Arlen Beam and Jane Kelly (UNPUBLISHED) [4377122] [15-1034]

United States Court of Appeals
For the Eighth Circuit
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No. 15-1034
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Keniko Duane Bland
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: February 8, 2016
Filed: March 14, 2016
[Unpublished]
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Before SHEPHERD, BEAM, and KELLY, Circuit Judges.
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PER CURIAM.
Keniko Bland pleaded guilty to illegal receipt of firearms by a person under
indictment in violation of 18 U.S.C. § 922(n). Based on an offense level of 19 and
a criminal history category of III, his advisory sentencing range under the Sentencing
Guidelines was 37–46 months. The presentence investigation report prepared by a
probation officer further suggested that “[a]n upward departure may be warranted

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pursuant to § 4A1.3.” That section of the Sentencing Guidelines permits the
sentencing court to impose a higher sentence if it determines that the defendant’s
“criminal history category substantially under-represents the seriousness of the
defendant’s criminal history or the likelihood that the defendant will commit other
crimes,” and provides a number of factors for the court to consider in making that
determination. USSG § 4A1.3(1)–(2).
At the sentencing hearing, Bland asked for a sentence of twenty-four months’
imprisonment, while the government requested forty months. The district court1
declined both proposals and sentenced Bland to fifty-seven months’ imprisonment –
eleven months more than the top of the advisory guidelines range and three months
less than the statutory maximum.
Bland first argues that the district court erred in imposing an upward departure
under USSG § 4A1.3(a). However, both the sentencing transcript and the statement
of reasons issued by the district court after sentencing indicate that the sentence was
based on an upward variance rather than a departure. “‘Departure’ is a term of art
under the Guidelines and refers only to non-Guidelines sentences imposed under the
framework set out in the Guidelines.” Irizarry v. United States, 553 U.S. 708, 714
(2008). A “variance,” by contrast, is a non-guidelines sentence based on the
sentencing factors set forth at 18 U.S.C. § 3553(a). United States v. Omoware, 761
F.3d 951, 952 (8th Cir. 2014). The fact that an upward departure under USSG
§ 4A1.3(a) is unavailable does not necessarily preclude an upward variance that is
based at least in part on similar factors, see United States v. Solis-Bermudez, 501 F.3d
882, 886–87 (8th Cir. 2007), and we find no procedural error.

1

The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
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Bland also argues that the sentence he received was substantively unreasonable.
We review the reasonableness of the district court’s sentence for abuse of discretion,
and a district court abuses its discretion only when it “(1) fails to consider a relevant
factor that should have received significant weight; (2) gives significant weight to an
improper or irrelevant factor; or (3) considers only the appropriate factors but in
weighing those factors commits a clear error of judgment.” United States v. Feemster,
572 F.3d 455, 461 (8th Cir. 2009) (en banc) (internal quotation marks omitted). Bland
asserts that the district court did not give sufficient weight to the unfortunate
circumstances in which Bland was raised: Bland’s mother struggled with drug abuse,
while his father was a gang member who exposed him to gangs at a young age. Bland
spent part of his childhood in foster care, and obtained most of his high school
education in juvenile placement facilities. These are certainly relevant factors in
determining a reasonable sentence. But the district court did consider them, stating
that “as far as your history and characteristics, certainly there is no doubt that you had
a difficult childhood, and there are significant mitigating factors that exist there.” It
simply found them outweighed by other § 3553(a) factors, especially other aspects of
his history and characteristics and the nature and circumstances of his offense.
“The court’s emphasis on the defendant’s criminal history and the nature of the
offense falls within a sentencing court’s substantial latitude to determine how much
weight to give the various factors under § 3553(a).” United States v. Timberlake, 679
F.3d 1008, 1012 (8th Cir. 2012) (internal quotation marks omitted); see also United
States v. Wisecarver, 644 F.3d 764, 774 (8th Cir. 2011) (“The district court’s choice
to assign relatively greater weight to the nature and circumstances of the offense than
to the mitigating personal characteristics of the defendant is well within the wide
latitude given to individual district court judges in weighing relevant factors.”). Here,
the court pointed out the multiple times Bland had possessed firearms in his young
life, the fact that incarceration as a juvenile “seem[ed] to have had no impact him
whatsoever,” and the dangerous nature and circumstances of the offense – both the
fact that he used straw purchasers to buy the firearms and the fact that the firearms
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themselves were of a particularly dangerous sort. The district court was also mindful
of avoiding unwarranted sentencing disparities, finding Bland’s conduct was not
“significantly different from [his] codefendant” Diontre Hill, who received a 65month sentence. Sentencing Bland to fifty-seven months’ imprisonment was not an
abuse of discretion, and the sentence was not substantively unreasonable.
The judgment of the district court is affirmed.
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