United States v. Wade Duane Arvidson ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-3812
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United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Wade Duane Arvidson, also known * District of Minnesota.
as Michael Duane Damron, also *
known as Michael Ray Buringrud, * [UNPUBLISHED]
*
Appellant. *
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Submitted: June 14, 2010
Filed: July 16, 2010
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Before LOKEN, ARNOLD, and GRUENDER, Circuit Judges.
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PER CURIAM.
Wade Arvidson appeals from the sentence of 24 months' imprisonment that the
district court1 imposed after revoking his supervised release. Mr. Arvidson had been
sentenced to 30 months' imprisonment for a firearms violation, see 18 U.S.C.
§ 922(g), which he served concurrently with a longer sentence for a state-law crime.
After his release, while he was on supervision, he was convicted of theft in a state
court resulting in a sentence of 60 months' imprisonment. It was that theft conviction
1
The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota.
that served as the grounds for the revocation involved here, and the district court
imposed its sentence to run consecutively to the sentence for that conviction.
At the revocation hearing, the district court was mindful of its duty to fix a
sentence in accordance with 18 U.S.C. § 3583(e), which requires consideration of any
applicable policy statements that the United States Sentencing Commission has issued,
see 18 U.S.C. § 3553(a)(4)(B), in imposing a sentence for a violation of supervised
release. The district court correctly concluded that the policy statements provided for
an advisory range of 21 to 27 months' imprisonment in the circumstances of
Mr. Arvidson's case, see U.S.S.G. §§ 7B1.1-7B1.5, and chose a sentence squarely in
the middle of that range.
Mr. Arvidson maintains that the sentence is unreasonable because the district
court did not give proper weight to the fact that the defendant did not think that he
should be under federal supervision after his release on the first state-law crime, or to
the fact that he had already served 40 months in state custody for the theft charge that
provided the basis for the revocation. Our examination of the record, however,
reveals that the district court heard argument on these matters at the revocation
hearing and it considered them and all the factors that the statutes require in choosing
a sentence. Because the sentence is within the range that the policy statements
recommend, it is presumptively reasonable. See United States v. Perkins, 526 F.3d
1107, 1110 (8th Cir. 2008). And we have detected nothing in the record that could
serve to undermine the presumption.
Mr. Arvidson also contends that the district court should have made the
sentence that it imposed run concurrently nunc pro tunc with the state sentence for
theft, but cites no authority that would require the court to do so. And in fact U.S.S.G.
§ 7B1.3(f) states that this kind of sentence "shall be ordered to be served
consecutively to any sentence that the defendant is serving."
Affirmed.
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