United States v. Linden Schuster , 447 F. App'x 750 ( 2011 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-1640
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Linden James Schuster, *
* [UNPUBLISHED]
Appellant. *
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Submitted: September 23, 2011
Filed: October 20, 2011
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Before MELLOY, SMITH and BENTON, Circuit Judges.
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PER CURIAM.
Linden James Schuster pled guilty to escape in violation of 18 U.S.C. §751(a).
The district court1 sentenced him to 40 months’ imprisonment and three years’
supervised release. He appeals the sentence as procedurally erroneous. Having
jurisdiction under 28 U.S.C. § 1291, this court affirms.
1
The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.
While in a halfway house, Schuster signed out to attend a job fair and seek a
job. He failed to return as scheduled. He went to a friend’s house, eventually stealing
his car. A week later, Schuster was arrested and charged with escape (the friend
declined to press charges for auto theft).
At sentencing, Schuster initially objected to some facts in the presentence
investigation (PSR) but withdrew his objection. He agreed that the guideline range
was 27 to 33 months. The government sought an upward “departure from the
guideline range” to 60 months based on his multiple escapes or walk-aways, parole
violations, the circumstances of the offense, and his extensive criminal history (he has
been incarcerated for 23 of the last 27 years). The district court stated it was going
to “depart” from the guidelines, but imposed a variance (as both parties acknowledge
on appeal). Schuster has not, at sentencing or on appeal, objected to the sentence as
a “departure.”
At sentencing, Schuster first argued he had not “escaped” but rather
“absconded” from custody and supervision several times, although he later admitted
this may be “semantics” (state versus federal terminology). He stated that a within-
guidelines sentence was more than sufficient to accomplish the sentencing goals. The
district court considered the PSR and sentenced him to 40 months.
Schuster asserts procedural error alleging that the court failed to consider the
§ 3553(a) factors or to explain why the sentence was “sufficient, but not greater than
necessary” to achieve the goals of sentencing. See Kimbrough v. United States, 552
U.S. 85, 101 (2007). Review is for plain error because he did not raise this
procedural error at sentencing. United States v. Mees, 640 F.3d 849, 854 (8th Cir.
2011). He must show an error, that was plain, and that affected his substantial rights.
Id. The error will only be corrected if it seriously affects the fairness, integrity, or
public reputation of judicial proceedings. United States v. Miller, 557 F.3d 910, 916
(8th Cir. 2009).
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Throughout the sentencing hearings – which included a two-month continuance
for defense counsel to clarify the PSR about Schuster’s past threats to law
enforcement and other prisoners – the district court thoroughly discussed the PSR
with Schuster. The court also discussed Schuster’s numerous walk-aways and
abscondings. In his brief, Schuster argues the court failed to acknowledge the
government erroneously stated he had “multiple escapes.” He tries to transform this
argument into a failure to consider a significant factor under § 3553(a). This
argument ignores the lengthy discussions about Schuster’s walk-aways and
abscondings. The district court considered the underlying facts, and Schuster made
it clear that he had no convictions for escape (but had a history of absconding, walk-
aways, and parole violations).
Finally, when imposing sentence, the court stated that it had considered the §
3553(a) factors, particularly Schuster’s “extensive criminal history record” and “lack
of success on supervised release.” Sentencing courts are not required to mechanically
recite the § 3553(a) factors. United States v. Brown, 627 F.3d 1068, 1074 (8th Cir.
2010). At sentencing, the court discussed Schuster’s pending state cases, previous
parole violations, and extensive but varied criminal history. These discussions
sufficiently explain the variance from the guidelines. See United States v. Mangum,
625 F.3d 466, 469 (8th Cir. 2010).
Schuster contends that due to procedural errors, the sentence cannot be
reviewed for reasonableness. Here, there is no procedural error, and the sentence is
affirmed under deferential abuse-of-discretion review.
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The judgment of the district court is affirmed.
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