United States v. Kevin Green

Filing

PER CURIAM OPINION FILED - THE COURT: James B. Loken, Duane Benton and Jane Kelly (UNPUBLISHED); Granting [4383095-2] motion to withdraw as counsel filed by Ms. Shannon Elkins. [4438723] [16-1466]

United States Court of Appeals
For the Eighth Circuit
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No. 16-1466
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Kevin Green
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: August 11, 2016
Filed: August 18, 2016
[Unpublished]
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Before LOKEN, BENTON, and KELLY, Circuit Judges.
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PER CURIAM.
Kevin Green appeals after the district court1 revoked his supervised release and
sentenced him to a prison term within his advisory Guidelines range. On appeal,

1

The Honorable David S. Doty, United States District Judge for the District of
Minnesota.

Appellate Case: 16-1466

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Date Filed: 08/18/2016 Entry ID: 4438723

counsel argues that the district court improperly relied upon a sentencing factor that
is listed in 18 U.S.C. § 3553(a)(2)(A), but not in 18 U.S.C. § 3583(e). In
supplemental pro se filings, Green challenges the district court’s factual findings and
suggests that his sentence is unreasonable because the court purportedly imposed an
above-Guidelines-range sentence without an adequate explanation. Additionally, his
counsel has moved to withdraw.
Green did not raise the sentencing factor argument before the district court, so
our review is for plain error. See United States v. Ruiz-Salazar, 785 F.3d 1270, 1272
(8th Cir. 2015) (per curiam). Because our circuit’s precedent does not clearly
establish that erroneously reciting the § 3553(a)(2)(A) sentencing factors in the
revocation context is procedural error, United States v. Martin, 757 F.3d 776, 780 &
n.2 (8th Cir. 2014), and because the district court also relied on the nature and
circumstances of the offense in imposing the sentence requested by Green’s counsel,
we find no plain error here. As to Green’s pro se arguments, we conclude that the
district court’s factual findings were not clearly erroneous, see United States v. Miller,
557 F.3d 910, 914 (8th Cir. 2009) (clear error review of district court’s factual
findings), and that his within-Guidelines-range sentence is not unreasonable, see
United States v. Petreikis, 551 F.3d 822, 824 (8th Cir. 2009) (applying presumption
of reasonableness to revocation sentence within Guidelines range); see also United
States v. Melton, 666 F.3d 513, 517-18 (8th Cir. 2012) (referring to court-imposed
time in residential reentry center as special condition of supervised release).
The judgment is affirmed. Counsel’s motion to withdraw is granted.
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Appellate Case: 16-1466

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Date Filed: 08/18/2016 Entry ID: 4438723