United States v. Samuel Irvin , 691 F. App'x 297 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-3283
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Samuel F. Irvin
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: June 5, 2017
Filed: June 23, 2017
[Unpublished]
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Before LOKEN, MURPHY, and MELLOY, Circuit Judges.
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PER CURIAM.
Samuel Irvin pled guilty to one count of being a felon in possession of
ammunition in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). The district court1
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The Honorable Roseann A. Ketchmark, United States District Judge for the
Western District of Missouri.
sentenced him to 84 months imprisonment. Irvin appeals, arguing that the district
court imposed a substantively unreasonable sentence. We affirm.
During an argument with a neighbor in October 2013, Irvin brandished a knife
in a parking lot before returning to his apartment. From there, he pointed a shotgun
in a threatening manner toward the neighbor as he walked by his window. After
police were called, they obtained a search warrant for Irvin's apartment. Although the
officers did not recover a firearm during their search, they did find .22 caliber
ammunition. Irvin was charged with being a felon in possession of ammunition in
violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and he pled guilty.
After the district court calculated an initial advisory guideline range for Irvin
(57 to 71 months), it concluded that his criminal history was underrepresented and that
a departure was warranted based on his prior conviction for assaulting a correctional
officer. Although that conviction was too old to count toward Irvin's criminal history,
he would have had a "more appropriate" advisory guideline range of 70 to 87 months if
it had in fact received criminal history points. After considering the 18 U.S.C. § 3553(a)
factors, the court sentenced him to 84 months imprisonment.
We review the reasonableness of the sentence for abuse of discretion. United
States v. Linderman, 587 F.3d 896, 899 (8th Cir. 2009). A defendant's "sentence is
substantively unreasonable if the district court 'fails to consider a relevant factor that
should have received significant weight, gives significant weight to an improper or
irrelevant factor, or considers only the appropriate factors but commits a clear error of
judgment in weighing those factors.'" United States v. Lozoya, 623 F.3d 624, 626 (8th
Cir. 2010) (quoting United States v. Watson, 480 F.3d 1175, 1177 (8th Cir. 2007)).
Irvin argues that the district court abused its discretion by placing too much
weight on his prior conviction for assaulting a correctional officer. A court may
depart upward if a defendant's "criminal history category substantially under-represents
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the seriousness" of his criminal history or the likelihood that he would commit other
crimes. U.S.S.G. § 4A1.3(a)(1). In considering criminal history, the court may take
notice of prior sentences too remote in time to receive criminal history points but which
show "similar, or serious dissimilar, criminal conduct." United States v. Johnson, 648
F.3d 940, 943 (8th Cir. 2011) (quoting U.S.S.G. § 4A1.2(e) cmt. n.8). Irvin's conviction
for unlawfully possessing ammunition arose from an incident in which he assaulted a
neighbor by brandishing a knife and pointing a firearm in a threatening manner. His
prior conviction for assaulting a correctional officer evidenced similar and serious
assaultive conduct, so the district court acted within its discretion by considering and
giving appropriate weight to it in determining that Irvin's criminal history category
underrepresented his criminal history.
Irvin also argues that the district court failed adequately to weigh his mitigating
evidence, particularly the testimony of his former employer regarding his head injury
and work ethic. The record demonstrates, however, that the district court did consider
this mitigating evidence. The court described the former employer's testimony as
"impressive." In light of that testimony, it decided to give Irvin a shorter sentence
than initially anticipated. The district court acted well within its discretion in
declining to give Irvin's mitigating evidence more weight than it did, particularly
given its concerns about his assaultive criminal history. See United States v. Salazar-
Aleman,741 F.3d 878, 881–82 (8th Cir. 2013) (concluding that sentence was not
substantively unreasonable when district court had acknowledged mitigating
evidence). We conclude that the district court's sentence was not substantively
unreasonable.
Accordingly, we affirm the judgment of the district court.
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