United States v. David Van Osten

Filing

PER CURIAM OPINION FILED - THE COURT: Roger L. Wollman, Kermit E. Bye and Bobby E. Shepherd (UNPUBLISHED) [4395241] [15-1923]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-1923
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
David Van Osten
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Northern District of Iowa - Ft. Dodge
____________
Submitted: February 29, 2016
Filed: May 4, 2016
[Unpublished]
____________
Before WOLLMAN, BYE, and SHEPHERD, Circuit Judges.
____________
PER CURIAM.
David Van Osten appeals the district court’s1 denial of a sentence reduction
under 18 U.S.C. § 3582(c)(2). We affirm.

1

The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.

Appellate Case: 15-1923

Page: 1

Date Filed: 05/04/2016 Entry ID: 4395241

I
In December 2004, Van Osten pled guilty to conspiracy to distribute
methamphetamine and possession of a firearm in furtherance of a drug trafficking
crime. At sentencing, the district court calculated a base offense level of 34 because
Van Osten was responsible for at least 1.5 kilograms but less than 5 kilograms of a
mixture or substance containing a detectable amount of methamphetamine. See
U.S.S.G. § 2D1.1(c)(3) (2005). For the conspiracy to distribute methamphetamine
count, the district court calculated a guideline range of 135 to 168 months and
sentenced Van Osten to 160 months’ imprisonment. For the possession of a firearm
in furtherance of a drug trafficking crime count, the district court sentenced Van Osten
to a mandatory minimum consecutive sentence of 60 months’ imprisonment.
On November 1, 2014, Amendment 782 to the United States Sentencing
Guidelines (U.S.S.G.) took effect. This amendment, colloquially referred to as the
“Drugs Minus Two” Amendment, lowered by two the offense level based on drug
quantity under U.S.S.G. §§ 2D1.1 and 2D1.11 and made this two-level reduction
retroactive. See U.S.S.G. § 1B1.10(d) (2014).
After Amendment 782 took effect, the district court, sua sponte, scheduled a
hearing to determine whether Van Osten was eligible for a sentence reduction under
Amendment 782 and 18 U.S.C. § 3582(c)(2). At the hearing, the district court
recalculated a base offense level of 31 and a guideline range of 108 to 135 months for
the conspiracy to distribute methamphetamine count. The district court weighed the
18 U.S.C. § 3553(a) factors and declined to reduce Van Osten’s sentence, finding the
mitigating factors did not outweigh the significant amount of methamphetamine Van
Osten distributed, the number of firearms he possessed, his problems on pretrial
release, and the fact that he fled to Malta prior to his guilty plea. Van Osten timely
appealed.

-2-

Appellate Case: 15-1923

Page: 2

Date Filed: 05/04/2016 Entry ID: 4395241

II
18 U.S.C § 3582 does not entitle a defendant to a sentencing reduction. United
States v. Long, 757 F.3d 762, 764 (8th Cir. 2014), cert. denied, 135 S. Ct. 991 (2015).
Rather, it gives the district court discretion to reduce a defendant’s sentence if his
sentencing range has subsequently been lowered and the reduction is consistent with
the § 3553(a) factors and applicable policy statements issued by the Sentencing
Commission. 18 U.S.C. § 3582(c)(2). We review a district court’s decision to deny
a sentence reduction for an abuse of discretion. United States v. Anderson, 707 F.3d
973, 974 (8th Cir. 2013) (per curiam).
Van Osten argues the district court abused its discretion when it denied his
request for a reduction in his sentence because it gave undue weight to aggravating
factors. We disagree. “The district court has wide latitude to weigh the § 3553(a)
factors in each case and assign some factors greater weight than others in determining
an appropriate sentence . . . .” United States v. Samaniego-Garcia, 758 F.3d 1007,
1008 (8th Cir. 2014). Here, the district court weighed the § 3553(a) factors and noted
Van Osten had a low criminal history and had made changes to his life since he
entered prison. But it found the aggravating factors – Van Osten’s possession of a
large quantity of methamphetamine, his possession of a number of guns, and his act
of fleeing to Malta – outweighed the mitigating factors. This decision was not an
abuse of discretion.
III
For the foregoing reasons, we affirm.
______________________________

-3-

Appellate Case: 15-1923

Page: 3

Date Filed: 05/04/2016 Entry ID: 4395241