United States v. David Phinney

Filing

CORRECTED OPINION FILED - THE COURT: RAYMOND W. GRUENDER, JANE KELLY and JOAN N. ERICKSEN Original Opinion filed on: 08/18/2016 Correction to opinion: File date added [4439888] [15-2772]

United States Court of Appeals
For the Eighth Circuit
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No. 15-2772
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
David Lee Phinney
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - St. Joseph
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Submitted: April 11, 2016
Filed: August 18, 2016 (Corrected August 22, 2016)
[Unpublished]
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Before GRUENDER and KELLY, Circuit Judges, and ERICKSEN,1 District
Judge.
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1

The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota, sitting by designation.

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PER CURIAM.
David Lee Phinney challenges the sentence imposed by the district court2 for
violating the terms of his supervised release. We affirm.
Less than two months after beginning his five-year term of supervised release
for conspiring to distribute methamphetamine, Phinney was arrested for violating
several of his conditions of release. Phinney admitted to violating the mandatory
condition that required him “not [to] commit another federal, state, or local crime,”
as well as the standard conditions requiring him to notify his probation officer within
three days of being arrested or questioned by law enforcement, and not to associate
with persons engaged in criminal activity or, absent permission from his probation
officer, with felons. The violations were based on Phinney taking part in a fight (for
which he was convicted of felony second-degree assault) and being a passenger in a
vehicle with three other felons that was stopped by police for a traffic violation.
The parties agree that the district court correctly calculated Phinney’s advisory
range under the United States Sentencing Guidelines as 46–57 months’ imprisonment,
and that Phinney was statutorily eligible for up to a lifetime of supervised release.
The district court sentenced Phinney to 48 months’ imprisonment followed by ten
years of supervised release.
We review a district court’s revocation sentencing decisions using the same
standards that we apply to initial sentencing decisions. United States v. Miller, 557
F.3d 910, 915–16 (8th Cir. 2009). “In reviewing a challenge to a sentence, we ‘must
first ensure that the district court committed no significant procedural error.’” United
States v. Dace, 660 F.3d 1011, 1013 (8th Cir. 2011) (quoting Gall v. United States,

2

The Honorable Greg Kays, Chief Judge, United States District Court for the
Western District of Missouri.
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552 U.S. 38, 51 (2007)). When it comes to procedural error, “we review a district
court’s factual findings for clear error and its interpretation and application of the
guidelines de novo.” Id. (quotation and citation omitted). “If we discover no
procedural error, we then consider the substantive reasonableness of the sentence
imposed under a deferential abuse-of-discretion standard.” United States v.
Timberlake, 679 F.3d 1008, 1011 (8th Cir. 2012) (citation omitted).
Phinney argues that the district court erred by failing to consider the statutory
factors it was required to, failing to adequately explain its sentence, and basing its
decision on clearly erroneous facts. Although Phinney characterizes these challenges
as being directed at the sentence’s substantive unreasonableness, they in fact concern
whether the district court committed procedural error. See Gall, 552 U.S. at 51. The
distinction matters because where a defendant fails to raise procedural objections at
sentencing – as is the case here – we can correct only plain errors. See Miller, 557
F.3d at 916. Claims that the length of a sentence is substantively unreasonable, by
contrast, are not reviewed for plain error even in the absence of an objection before
the district court. See United States v. Wiley, 509 F.3d 474, 476–77 (8th Cir. 2007).
Phinney raises no instance of plain procedural error. First, a district court is
required to consider the factors cited in 18 U.S.C. § 3583(e) when imposing a
sentence in the context of a supervised release revocation. The district court stated
that it considered the statutory factors and elaborated on its analysis of a number of
them, such as “the history and characteristics of the defendant” and the need “to
protect the public from further crimes of the defendant,” noting Phinney’s category
V criminal history and the violence he exhibited during the fight. That defeats any
claim of plain error based on failing to consider the necessary sentencing factors, for
sentencing courts need not mechanically list each factor to satisfy their statutory
duties. United States v. Olson, 716 F.3d 1052, 1057 (8th Cir. 2013).

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Second, 18 U.S.C. § 3553(c) requires the district court to “state in open court
the reasons for its imposition of the particular sentence.” No “lengthy explanation”
is required, so long as the sentencing judge “set[s] forth enough to satisfy the
appellate court that he has considered the parties’ arguments and has a reasoned basis
for exercising his own legal decisionmaking authority.” Rita v. United States, 551
U.S. 338, 356 (2007). Having reviewed the sentencing transcript, we find that the
district court committed no plain error on this score.
Third, Phinney contends that the district court relied on clearly erroneous facts,
because it mistakenly stated at one point in the sentencing hearing that Phinney had
stabbed another man. But Phinney’s attorney promptly corrected the mistake, which
was based on an offense report describing the fight, while acknowledging that
Phinney pushed the other man to the ground and beat him. The district court
acknowledged the misstatement and did not rely on any purported stabbing when
imposing the sentence.
Finally, Phinney challenges the length of his sentence as substantively
unreasonable. We conclude that the district court did not abuse its discretion by
imposing a substantively unreasonable sentence. Both the four-year prison term and
the lengthy period of supervised release were within the district court’s discretion to
impose based on the factors it considered, including Phinney’s extensive criminal
history, the fact that he had committed another crime soon after being placed on
supervised release, and the violence he displayed during the fight.
Affirmed.
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