United States v. Lamonte Dickens ( 2018 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-2219
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Lamonte Dior Dickens
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: April 13, 2018
Filed: May 30, 2018
[Unpublished]
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Before GRUENDER, BENTON, and GRASZ, Circuit Judges.
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PER CURIAM.
Lamonte Dior Dickens pled guilty to unlawfully possessing a firearm in
violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2). The district court1 sentenced him
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The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
to 37 months’ imprisonment and three years’ supervised release. After prison, he
violated the conditions of release. The court revoked the release, sentencing him to
five months’ imprisonment and two years’ supervised release. After prison, he again
violated the conditions of release. The court revoked the release, sentencing him to
11 months’ imprisonment and 20 months’ supervised release. He appeals. Having
jurisdiction under 28 U.S.C. § 1291, this court affirms.
Dickens believes the district court clearly erred in finding he violated the
conditions of his supervised release. This court reviews “the district court’s decision
to revoke supervised release for an abuse of discretion.” United States v. Boyd, 792
F.3d 916, 919 (8th Cir. 2015). “[T]he court’s subsidiary factfinding as to whether or
not a violation occurred is reviewed for clear error.” Id.Dickens challenges violation 2 which says:
Violation 2: On May 9, 2017, the defendant appeared before Chief U.S.
Magistrate Judge C.J. Williams for a scheduled Detention Hearing.
Following this hearing, as the defendant was being escorted out of the
courtroom, the defendant made eye contact with this officer and
Assistant U.S. Attorney (AUSA) Justin Lightfoot and was overheard
saying, “I’m gonna slap that bitch.” Additionally, on May 16, 2017, the
defendant contacted this officer from the Linn County, Iowa,
Correctional Facility. During this conversation, the defendant stated, “I
don’t think I should be going back to prison just for saying I slap you.”
This officer spoke with AUSA Lightfoot regarding the defendant’s
statement following his Detention Hearing and during his phone
conversation with this officer. The government is prepared to present
evidence at revocation proceedings that the defendant has committed the
federal offense of Influencing, Impeding, or Retaliating Against a
Federal Official by Threatening or Injuring a Family Member as defined
under Title 18 U.S.C. § 115, punishable by not more than one (1) year
imprisonment.
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At the revocation hearing, Dickens contested this violation. Deputy United
States Marshal Michael Gloeckner testified. He said that on May 9, 2017, Dickens
said “slap that bitch” while looking in the direction of his probation officer, Rhonda
Moyle. On cross-examination, Deputy Gloeckner admitted he could not “say with
certainty that Mr. Dickens’s comments were directed at Ms. Moyle.” Officer Moyle
also testified. She said Dickens stared at her throughout his detention hearing.
Exiting the courtroom, he looked at her and said, “I’m gonna slap that bitch.” Officer
Moyle believes the comment was directed at her. When she spoke with Deputy
Gloeckner, he said he shared her belief. On May 16, Dickens called Officer Moyle
from jail. In a recording from the conversation, Dickens says something like, “I don’t
think I should be going back to prison for saying I slap you.” Dickens testified the
comment was not directed at Officer Moyle. Instead, he claimed he said, “I should
have slapped that bitch,” referring to a female resident at the residential center where
he had been staying.
At the close of evidence, the district court made factual findings:
On the allegations in the petition. The Court’s findings are by a
preponderance of the evidence.
....
In terms of the new law violation, which is violation 2, the Court finds
by a preponderance of the evidence that Mr. Dickens did say in reference
to Officer Moyle and to Officer Moyle “I’m gonna slap that bitch,” and
in addition to that testimony and that incident, he made admissions to
saying that when he called her on the telephone. Now, he may not have
had the petition that was filed with the court, but he knew what had
happened in the courtroom with reference to her.
The Court has looked at Title 18 United States Code Section 115, which
makes it a federal crime to try to influence, impede, or retaliate against
a federal official by threatening or injuring a family member, and the
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Court finds that that has been established by a preponderance of the
evidence.
Crediting the testimony of Deputy Gloeckner and Officer Moyle, the district court
found Dickens committed violation 2 based on a preponderance of the evidence. “The
district court’s assessment of witness credibility is quintessentially a judgment call
and virtually unassailable on appeal.” United States v. Manzano-Huerta, 809 F.3d
440, 445 (8th Cir. 2016) (internal quotation marks omitted). The district court did not
clearly err in finding this violation. See United States v. Cates, 613 F.3d 856, 858 (8th
Cir. 2010) (“Our review, then, is not to determine what conclusion we might reach in
the case were we to sit as the finders of fact, but to determine whether the district
court’s factual findings amount to clear error.”).
Dickens contends his 11-month sentence (guidelines 5 to 11 months) is
substantively unreasonable. This court “review[s] the substantive reasonableness of
a sentence imposed after a revocation of supervised release for abuse of discretion.”
United States v. Longs, 806 F.3d 1001, 1001 (8th Cir. 2015). “The district court
abuses its discretion when it does not consider a factor that should have received
significant weight, gives significant weight to an improper or irrelevant factor, or
makes a clear error of judgment.” United States v. White, 840 F.3d 550, 554 (8th Cir.
2016). “[I]t will be the unusual case when we reverse a district court
sentence—whether within, above, or below the applicable Guidelines range—as
substantively unreasonable.” United States v. Feemster, 572 F.3d 455, 464 (8th Cir.
2009) (en banc).
In sentencing Dickens, the court said that it “carefully considered each and
every factor under 18 United States Code Section 3553(a) that applies in a revocation
proceeding.” The court also discussed his dangerous behavior, lack of commitment
to counseling, poor impulse control, and lack of truthfulness:
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And Mr. Dickens is dangerous. He doesn’t like to admit his assaultive
past, but it’s a matter of record. In his presentence investigation report,
he’s been intimidating, aggressive, and violent since at least age 15
when, if you can believe it, he assaulted an alternative high school
teacher. That’s age 15, and the assaultive behavior continued. He likes
to pick on women. There are some men here that he has assaulted or
some people whose names I can’t tell if they’re men or women. But
clearly, this is his pattern of behavior.
And I’m just shocked at his complaint toward Officer Moyle, that she
didn’t get him the help that he needed. As a matter of fact, in the
supervision summary, we see that he had been referred on May 2nd for
an evaluation at St. Luke’s Chemical Dependency Service, on May 8th,
he was referred to Thinking for a Change, but he couldn’t even hold it
together long enough to get to those classes and start to work on his
problems. So he wants everything instantaneously, and that
doesn’t—that’s not how the world works. You have to get the
programming scheduled, which Officer Moyle did, but he had to—he
was in everybody’s face and being aggressive and threatening before he
could even get to the class work.
I am very concerned about his inability to control himself. He’s
threatening, aggressive, impulsive. He doesn’t understand the
seriousness of his offense. He thinks this is no big deal, and that is
extremely concerning, and is also counterintuitive for somebody who
says that they want help. The first thing you have to do is accept your
behavior and realize that it is improper and that it is causing you
problems, as well as the people that you are threatening.
He’s not truthful. Today he testified under oath and was not truthful in
this courtroom.
So the Court finds, after a full consideration of everything I know about
him, that the appropriate disposition, the sentence that is appropriate
under all the facts and circumstances, is a revocation of probation—or
of supervision and a return to prison for Mr. Dickens, 11 months,
followed by 20 months of supervised release.
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The court did not abuse its discretion imposing a within-guidelines sentence.
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The judgment is affirmed.
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