United States v. Mario Green ( 2019 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 18-2629
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Mario D. Green
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
____________
Submitted: May 13, 2019
Filed: June 26, 2019
[Unpublished]
____________
Before COLLOTON, BEAM, and SHEPHERD, Circuit Judges.
____________
PER CURIAM.
Mario Green appeals his 100-month sentence after having pled guilty to being
a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1). He first
argues that the district court1 erred in varying upward from the United States
Sentencing Guidelines range of 63 to 78 months because it incorrectly doubled the
number of Green’s prior felony convictions. He also argues that the district court
failed to address the 18 U.S.C. § 3553(a) factors and did not give an adequate
explanation as to why a within-Guidelines-range sentence was insufficient. Finally,
Green argues that his sentence is substantively unreasonable. Having jurisdiction
under 28 U.S.C. § 1291, we affirm.
Our standard of review is well established: We “must first ensure that the
district court committed no significant procedural error, such as . . . failing to consider
the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing
to adequately explain the chosen sentence—including an explanation for any
deviation from the Guidelines range.” Gall v. United States, 552 U.S. 38, 51 (2007).
“Usually, [i]n reviewing a sentence for significant procedural error, we review a
district court’s factual findings for clear error and its interpretation and application
of the guidelines de novo.” United States v. Timberlake, 679 F.3d 1008, 1011 (8th
Cir. 2012) (alteration in original) (internal quotation marks omitted).
“Assuming that the district court’s sentencing decision is procedurally
sound,” we “should then consider the substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard.” Gall, 552 U.S. at 51 (“Regardless
of whether the sentence imposed is inside or outside the Guidelines range, [we] must
review the sentence under an abuse-of-discretion standard.”). “When conducting this
review,” we “will . . . take into account the totality of the circumstances, including the
extent of any variance from the Guidelines range.” Id. “[I]f the sentence is outside
the Guidelines range,” we “may not apply a presumption of unreasonableness.” Id.
We “may consider the extent of the deviation, but must give due deference to the
1
The Honorable James M. Moody, Jr., United States District Judge for the
Eastern District of Arkansas.
-2-
district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the
variance.” Id. “The fact that [we] might reasonably have concluded that a different
sentence was appropriate is insufficient to justify reversal of the district court.” Id.
“A district court abuses its discretion when it (1) fails to consider a relevant factor
that should have received significant weight; (2) gives significant weight to an
improper or irrelevant factor; or (3) considers only the appropriate factors but in
weighing those factors commits a clear error of judgment.” United States v.
Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (internal quotation marks
omitted). With this framework in mind, we now turn to Green’s arguments.
First, Green argues that the district court committed procedural error because
it based the 22-month upward variance on its mistaken belief that he had six prior
felony convictions, when in fact he had only three and, therefore, incorrectly doubled
Green’s criminal history. Although the district court stated in its sealed written
Statement of Reasons that Green had six prior felony convictions, it later amended
the judgment on Green’s motion to reflect the correct number of three felony
convictions. See Order 1, Dist. Ct. Dkt. 56. There is no evidence in the record that
the district court’s mistake was anything more than a clerical error. During
sentencing, the court specifically referenced Green’s three prior convictions for
aggravated assault, terroristic threatening, and for being a felon in possession of a
firearm. Sent. Hr’g Tr. 32, Dist. Ct. Dkt. 60. The court did not reference any other
purported felonies.
After reviewing the entire sentencing record, as we must, see United States v.
Perkins, 526 F.3d 1107, 1111 (8th Cir. 2008), including the presentence investigation
report and the sentencing transcript, we conclude that the district court did not base
its sentence on an erroneously stated number of prior felony convictions. Green’s
reliance on United States v. Ballard, 745 F. App’x 257 (8th Cir. 2018) (per curiam)
is misplaced. In Ballard, we vacated an above-the-Guidelines-range sentence because
the district court relied “nearly exclusively on an inflated assessment of [the
-3-
defendant]’s criminal history.” Id. at 258. Unlike in Ballard, here the district court
did not rely on an inflated assessment of Green’s criminal history and promptly
corrected its clerical error after Green brought it to the court’s attention.
Accordingly, the district court did not clearly err.
Next, Green argues that the district court committed procedural error because
it failed to address the § 3553(a) factors and did not give an adequate explanation as
to why a within-Guidelines-range sentence was insufficient. We disagree. A district
court is “presume[d to] . . . know the law and understand [its] obligation to consider
all of the § 3553(a) factors” and thus a “mechanical recitation of the § 3553(a) factors
is unnecessary . . . .” United States v. Battiest, 553 F.3d 1132, 1136 (8th Cir.
2009) (internal quotation marks omitted). “If a district court references some of the
considerations contained in § 3553(a), we are ordinarily satisfied that the district
court was aware of the entire contents of the relevant statute.” Perkins, 526 F.3d at
1111 (internal quotation marks omitted). Based on the district court’s discussion of
the extensive and violent nature of Green’s criminal history, the lack of an express
statement as to why an upward variance was necessary does not amount to procedural
error. Further, the court stated that it had performed “a comprehensive review of the
presentence report” and had considered the § 3553(a) factors. See Sent. Hr’g Tr. 31.
Finally, Green argues that his sentence is substantively unreasonable, relying
on the same arguments we reject as a basis to find any procedural error. In any event,
a district court “has wide latitude to weigh the § 3553(a) factors in each case and
assign some factors greater weight than others in determining an appropriate
sentence.” United States v. Boelter, 806 F.3d 1134, 1136 (8th Cir. 2015) (per
curiam) (citation omitted). The district court permissibly placed greater weight on
Green’s voluminous and violent criminal history than the other sentencing factors,
which resulted in the district court’s decision to vary upward. See United States v.
Sadler, 864 F.3d 902, 904-05 (8th Cir. 2017) (per curiam) (concluding that 102-
month sentence imposed above the Guidelines range of 63 to 78 months on defendant
-4-
who pled guilty to being a felon in possession of a firearm was not substantively
unreasonable because “the driving force behind [the] sentence was [a] ‘very long
and . . . very violent criminal history’” (third alteration in original)). Just “because
the district court weighed the relevant factors more heavily than [Green] would prefer
does not mean the district court abused its discretion.” United States v. Richart, 662
F.3d 1037, 1054 (8th Cir. 2011). Indeed, “it will be the unusual case when we reverse
a district court sentence—whether within, above, or below the applicable Guidelines
range—as substantively unreasonable.” Feemster, 572 F.3d at 464 (quoting United
States v. Gardellini, 545 F.3d 1089, 1090 (D.C. Cir. 2008)). This is not the unusual
case and, therefore, Green’s sentence is not substantively unreasonable. Accordingly,
the district court did not abuse its discretion.
The judgment is affirmed.
______________________________
-5-