United States v. Larry Allison

Filing

PER CURIAM OPINION FILED - THE COURT: William Jay Riley, James B. Loken and Duane Benton (PUBLISHED) [4371865] [15-1618]

United States Court of Appeals
For the Eighth Circuit
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No. 15-1618
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Larry Allison
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Springfield
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Submitted: February 8, 2016
Filed: February 29, 2016
[Published]
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Before RILEY, Chief Judge, LOKEN and BENTON, Circuit Judges.
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PER CURIAM.
Larry Allison pled guilty to sexually exploiting a child in violation of 18 U.S.C.
§ 2251(a), which subjected Allison to a prison sentence of “not less than 15 years nor
more than 30 years” pursuant to 18 U.S.C. § 2251(e). Before sentencing, a probation
officer prepared a presentence investigation report calculating an initial advisory
United States Sentencing Guidelines (U.S.S.G. or Guidelines) range of 121 to 151

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months imprisonment (level 31, category II), applying a three-level reduction for
acceptance of responsibility. See U.S.S.G. § 3E1.1. Because the “statutorily required
minimum sentence [for Allison’s crime was] greater than the maximum of the
applicable guideline range,” Allison’s advisory Guidelines sentence was 15 years (180
months) imprisonment. U.S.S.G. § 5G1.1(b).
At a March 10, 2015 sentencing hearing, the district court1 properly calculated
Allison’s 180-month advisory Guidelines sentence before turning to the statutory
sentencing factors, see 18 U.S.C. § 3553(a), and the parties’ respective sentencing
recommendations. The government recommended a sentence of 216 months based
on the vile nature of Allison’s criminal activity and his extensive criminal history,
which included other “lewd and lascivious behavior.” Allison maintained the
mandatory minimum 180 months—already significantly higher than the initial
Guidelines range of 121 to 151 months—fully served the purposes of sentencing and
would give Allison due credit for accepting responsibility. After considering the
arguments and the 18 U.S.C. § 3553(a) factors, the district court varied upward
24 months and sentenced Allison to 204 months imprisonment, followed by 180
months of supervised release.
Allison appeals, arguing his sentence is substantively unreasonable because it
is “greater than necessary to sufficiently comply with the purposes of a criminal
sentence as outlined in 18 U.S.C. § 3553(a).” As Allison sees it, his sentence is
“unjust” and “do[es] not promote respect for the law” because it “does not recognize
the benefit upon the system of [Allison] accepting responsibility,” including sparing
his victim further harm and preserving the government’s limited resources.

1

The Honorable M. Douglas Harpool, United States District Judge for the
Western District of Missouri.
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We review Allison’s sentence “under a deferential abuse-of-discretion
standard,” taking “into account the totality of the circumstances, including the extent
of any variance from the Guidelines range.” Gall v. United States, 552 U.S. 38, 41,
51 (2007). “A district court abuses its discretion and imposes an unreasonable
sentence when it fails to consider a relevant and significant factor, gives significant
weight to an irrelevant or improper factor, or considers the appropriate factors but
commits a clear error of judgment in weighing those factors.” United States v. Miner,
544 F.3d 930, 932 (8th Cir. 2008).
Giving “due deference to the district court’s decision that the § 3553(a) factors,
on a whole, justif[ied] the extent of the variance,” Gall, 552 U.S. at 51, we find no
abuse of discretion in this case. In imposing Allison’s sentence, the district court
carefully considered the relevant 18 U.S.C. § 3553(a) factors and thoroughly
explained why (1) the “disturbing” nature and “egregious” circumstances of Allison’s
offense; (2) his prior sex crimes and “pages of other criminal activity”; and (3) the
need to deter and punish sexual exploitation and protect children from sexual
predators all justified varying upward 24 months. Answering Allison’s concern that
his sentence “fail[ed] to take into account his acceptance of responsibility” and risked
deterring future criminals from accepting responsibility, the district court explained
Allison’s 204-month sentence—only 24 months above the mandatory minimum—was
still well below the 30-year statutory maximum Congress authorized for sexually
exploiting a child like Allison did. See 18 U.S.C. § 2251(e).
The district court’s decision to vary upward in this case was well within its
broad sentencing discretion, and the sentence is substantively reasonable. Satisfied
Allison’s sentence is “not greater than necessary to” serve the purposes of § 3553(a),
we affirm.
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