United States v. Marcell Bennett , 401 F. App'x 155 ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-3801
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Marcell C. Bennett, *
* [UNPUBLISHED]
Appellant. *
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Submitted: May 10, 2010
Filed: November 24, 2010
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Before WOLLMAN, SMITH, and COLLOTON, Circuit Judges.
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PER CURIAM.
The district court1 revoked Marcell Bennett’s supervised release and sentenced
him to thirty-six months’ imprisonment with no further supervised release. The
sentence exceeded the range of eight to fourteen months’ imprisonment recommended
by the policy statements of the United States Sentencing Guidelines. Bennett
complains that the district court committed procedural error, and that the sentence is
substantively unreasonable. We affirm.
1
The Honorable Richard G. Kopf, United States District Court Judge for the
District of Nebraska.
In June 2004, Bennett pleaded guilty to two offenses: conspiracy to distribute
and possess with intent to distribute fifty grams or more of a mixture containing
cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1), and 846, and
possession of a firearm in furtherance of a drug trafficking crime, in violation of 18
U.S.C. 924(c). The district court sentenced him to a term of imprisonment and also
imposed five years of supervised release. The original term of imprisonment was 151
months for the drug offense and sixty months for the firearms offense, to be served
consecutively. In 2006, the court reduced the sentence on the drug charge to forty
months and the sentence on the firearms charge to twenty months, based on Bennett’s
provision of substantial assistance. See Fed. R. Crim. P. 35(b). In 2008, the court
reduced the sentence on the drug charge to thirty-two months due to a retroactive
amendment to the sentencing guidelines concerning cocaine base. See 18 U.S.C.
§ 3582(c).
Bennett began his term of supervised release in March 2008. In December
2008, the probation office filed a petition alleging that Bennett had committed six
violations of the conditions of his release. The petition was amended in August 2009
to allege three more violations. At a revocation hearing in November 2009, Bennett
admitted two of the nine allegations. He conceded that he violated Nebraska law by
attempting to obtain prescription medication with a forged document, and by
attempting to shoplift clothing from a Wal-Mart store. He was convicted of two
felonies in Nebraska, and the state court sentenced him to twelve months’
imprisonment on each charge, to be served concurrently.
In the federal revocation proceeding, the recommended sentencing range under
the policy statements contained in Chapter 7 of the Guidelines Manual was eight to
fourteen months’ imprisonment, and the statutory maximum prison sentence was sixty
months. 18 U.S.C. § 3583(e)(3); USSG § 7B1.4. Bennett asked the district court to
consider a sentence of no more than twenty-four months’ imprisonment, while the
government recommended thirty-six months. The court imposed a sentence of thirty-
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six months’ imprisonment, with no further supervised release, and specified that the
sentence was to run consecutively to Bennett’s state sentences.
On appeal, Bennett contends that the district court committed procedural error
by failing to consider the relevant sentencing factors. He also argues that the court
imposed a sentence that was excessive and unreasonable.
Bennett raised no procedural objections at sentencing, so we review only for
plain error, and we find none. We are satisfied that the district court considered the
relevant sentencing factors under 18 U.S.C. § 3553(a). At the revocation hearing, the
district court discussed the nature of Bennett’s state law offenses, and referred to the
need to deter his extensive criminal conduct. See id. § 3553(a)(1)-(2); United States
v. White Face, 383 F.3d 733, 740 (8th Cir. 2004) (noting that if the 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”) (internal
quotation omitted). The district court was aware of Bennett’s history and
characteristics, having presided over his initial sentencing proceeding and two later
proceedings at which the initial sentence was reduced. See United States v. Franklin,
397 F.3d 604, 607 (8th Cir. 2005). The district court likewise knew about Bennett’s
substance abuse problems while on supervised release, and his mental health issues.
See 18 U.S.C. § 3553(a)(1), (a)(2)(D). The court was familiar with the types of
sentences available, and considered Bennett’s state proceedings, the recommended
sentencing range, and the statutory maximum. See id. § 3553(a)(4). A listing and
discussion of each § 3553(a) factor is not required, particularly when the defendant
does not object at sentencing to the adequacy of the court’s explanation.
We also conclude, applying a deferential abuse-of-discretion standard, that the
sentence is not unreasonable. The district court has wide latitude in choosing an
appropriate sentence within the statutory range, see United States v. Feemster, 572
F.3d 455, 461-62 (8th Cir. 2009) (en banc), and the seriousness of Bennett’s repeated
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violations reasonably justified a sentence higher than that recommended by the
Sentencing Commission’s policy statements. See United States v. Larison, 432 F.3d
921, 922-24 (8th Cir. 2006) (noting that “[w]e have long recognized the purely
advisory nature of the Chapter 7 policy statements related to the revocation of
supervised release,” and affirming as reasonable a sixty-month prison sentence based
on the defendant’s repeated violations where the advisory range was five to eleven
months); United States v. Cotton, 399 F.3d 913, 916-17 (8th Cir. 2005) (affirming a
forty-six month sentence for repeated violations where the advisory range was seven
to thirteen months). That Bennett’s original sentence was the result of a downward
departure gave the court additional justification for considering an upward variance.
See USSG § 7B1.4, comment. (n.4); Larison, 432 F.3d at 923. And the court’s
decision to run the federal sentence consecutive to Bennett’s state sentences was
consistent with the policy statements issued by the Sentencing Commission. See
USSG § 7B1.3(f); United States v. Pardue, 363 F.3d 695, 699 (8th Cir. 2004).
The judgment of the district court is affirmed.
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