United States v. Everett Mack, III ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-3539
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Everett Powell Mack, III
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
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Submitted: December 10, 2018
Filed: March 21, 2019
[Unpublished]
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Before SMITH, Chief Judge, WOLLMAN and GRASZ, Circuit Judges.
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PER CURIAM.
Everett Mack challenges the 120-month sentence he received after pleading
guilty to being a felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1). He specifically challenges the district court’s1 decision to vary upward
to 120 months’ imprisonment from the recommended Guidelines’ range of 30 to 37
months. Mack argues the district court committed both procedural and substantive
error in imposing his above-Guidelines sentence. We disagree and affirm the
judgment.
I. Background
On January 4, 2017, officers attempted to conduct a traffic stop on a vehicle
Mack was driving. At the time, Mack was a convicted felon and was on probation for
Arkansas first-degree criminal mischief. Mack did not stop when flagged by police
but kept driving until he reached his grandmother’s backyard. Mack then got out of
the car, tossed a gun he had with him, and jumped over a fence—dropping bullets as
he jumped. Officers followed Mack by car and on foot, but he eluded capture.
Officers did, however, recover a loaded 9mm pistol, a magazine, and some loose
bullets by the fence.
Several of the officers involved in the chase knew Mack and identified him
both as the driver of the car that would not stop and as the person who then fled on
foot. The car’s passenger likewise identified Mack as the driver. While police were
still at the scene, Mack’s father confirmed that he had rented the car in question and
that Mack had been driving it.
Mack was charged with being a felon in possession of a firearm and pleaded
guilty pursuant to a written plea agreement. Prior to sentencing, the probation office
provided the district court with a presentence investigation report (PSR) detailing
Mack’s offense conduct, criminal history, and other characteristics. At sentencing, the
court calculated a total offense level of 17 and a criminal history category of III,
1
The Honorable Brian S. Miller, Chief Judge, United States District Court for
the Eastern District of Arkansas.
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resulting in a Guidelines range of 30 to 37 months’ imprisonment. The government
then argued for an upward variance to the statutory maximum of 120 months, and the
district court granted the variance.
II. Discussion
On appeal, Mack challenges the district court’s decision to vary upward to 120
months from the Guidelines range of 30 to 37 months. Mack argues the district court
committed both procedural and substantive error in imposing his above-Guidelines
sentence.
A. Procedural Error
We generally review sentences under an abuse-of-discretion standard. United
States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc). When a defendant
fails to object to procedural error at the district court, however, the error is forfeited
and only reviewed for plain error. United States v. Miller, 557 F.3d 910, 916 (8th Cir.
2009). “Under plain error review, the defendant must show: (1) an error; (2) that is
plain; and (3) that affects substantial rights.” United States v. Black, 670 F.3d 877,
881 (8th Cir. 2012) (citation omitted). Because Mack did not allege procedural error
below, we review the district court’s decision for plain error.
“Procedural error includes failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, 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.” Feemster, 572 F.3d at 461 (cleaned up). However, “we
do not require a district court to provide a mechanical recitation of the § 3553(a)
factors when determining a sentence. Rather, it simply must be clear from the record
that the district court actually considered the § 3553(a) factors in determining the
sentence.” Id. (cleaned up). In conducting the § 3553(a) analysis, “[a] sentencing
court has a wide discretion and may consider any relevant information that may assist
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the court in determining a fair and just sentence.” United States v. Gant, 663 F.3d
1023, 1029 (8th Cir. 2011). This includes information already accounted for by the
Guidelines. United States v. Thorne, 896 F.3d 861, 865 (8th Cir. 2018) (per curiam).
Mack argues the district court erred in failing to consider certain § 3553(a)
factors. Specifically, Mack argues the court failed to consider the nature and
circumstances of the instant offense and the need for the sentence imposed to provide
just punishment. Mack also argues the district court did not adequately explain its
sentencing decision. These arguments fail.
“[A]ll that is generally required to satisfy the appellate court is evidence that
the district court was aware of the relevant factors.” United States v. Perkins, 526
F.3d 1107, 1110 (8th Cir. 2008).Though the district court did not discuss the nature
and circumstances of the instant offense in detail, the court was clearly aware of, and
informed by, the offense conduct. At sentencing, the court heard the government’s
description of Mack’s conduct, including how he fled from police, tossed his gun,
dropped his bullets, and jumped over a fence. At sentencing, the court specifically
referred to “the fact that after being determined to be a felon, [Mack] is still riding
around on at least two occasions with guns in the car”—the very conduct at issue
here. Sentencing Tr. at 11, United States v. Mack, No. 4:17-cr-00029-1-BSM (E.D.
Ark. Nov. 13, 2017), ECF No. 33.
The district court also thoroughly discussed Mack’s extensive criminal history
and explained its rationale for imposing the statutory maximum. The court compared
Mack’s criminal history and conduct to another felon-in-possession case recently
before the court as a means of explaining Mack’s sentence.
Though the district court could have discussed the offense-specific conduct in
greater detail, its failure to do so was not erroneous. Consequently, it cannot
constitute plain error. Neither can we say the district court plainly erred in its
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consideration of any of the other § 3553(a) factors. Therefore, the district court did
not commit procedural error.
B. Substantive Unreasonableness
In the absence of procedural error, we consider substantive reasonableness. We
look to whether the district court abused its discretion by failing to consider a relevant
factor, giving significant weight to an irrelevant or improper factor, or committing a
clear error of judgment. Feemster, 572 F.3d at 461.
In conducting this review, we are to take into account the totality of the
circumstances, including the extent of any variance from the Guidelines
range. . . . But we are not permitted to apply a presumption of
unreasonableness if the sentence is outside the Guidelines range. . . .
and are prohibited from the use of a rigid mathematical formula that uses
the percentage of a departure as the standard for determining the
strength of the justifications required for a specific sentence.
Id. at 461–62 (cleaned up). Thus, we have repeatedly upheld substantially above-
Guidelines sentences where the totality of the circumstances have justified such an
increase. See, e.g., United States v. Thorne, 896 F.3d 861 (8th Cir. 2018) (per curiam)
(affirming a 120-month sentence for a felon in possession with a Guidelines range of
30–37 months); Ferguson v. United States, 623 F.3d 627 (8th Cir. 2010) (affirming
increase from 6–12 months to 60 months); United States v. Dehghani, 550 F.3d 716(8th Cir. 2008) (affirming increase from 262–327 months to 432 months); United
States v. Ruvalcava-Perez, 561 F.3d 883 (8th Cir. 2009) (affirming increase from
110–137 months to 210 months).
Mack argues his sentence is substantively unreasonable because “[t]he
§ 3553(a) factors do not support the substantial upward variance imposed by the
district court.” Appellant’s Br. at 14. Mack also claims the court overemphasized and
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misrepresented his criminal history and gave insufficient weight to other § 3553(a)
factors.
The district court addressed the need to deter crime, protect the public, provide
just punishment, and promote respect for the law in fashioning Mack’s sentence. The
district court did rely heavily on Mack’s criminal history to support its variance, but
a sentencing court’s weighing of the factors is accorded deferential review. While
Mack characterizes his prior offenses as largely “nonviolent, low-level offenses,” id.,
the district court considered Mack “a very dangerous person.” Sentencing Tr. at 10.
Indeed, even excluding Mack’s pending charges, Mack has a lengthy criminal history
for a 23 year old: eight adult criminal convictions and seven charges either nolle
prossed or dismissed. Of the nolle prossed charges, Mack’s PSR indicated two
aggravated assaults and one battery in just two years. And of the eight convictions,
four included illegal weapon charges. The court also heard evidence that Mack was
involved in an incident where shots were either intentionally or recklessly fired
towards another person.
Mack contends his sentence is unreasonable because it is substantially above
the Guidelines range. But viewing the record as a whole, we conclude the district
court did not abuse its discretion in fashioning its sentence. Mack relies on United
States v. Martinez, 821 F.3d 984 (8th Cir. 2016), to support his claim that his
sentence is substantively unreasonable. However, Mack’s reliance on Martinez is
misplaced. In Martinez, we vacated a sentence of 262 months’ imprisonment after
calculating a Guidelines range of 121 to 151 months. Id. We found Martinez’s
criminal history did not warrant so severe a variance. Id. at 989 (“[T]he district court
sentenced Martinez to an additional nine years because, as a nineteen-year-old,
Martinez threw an elbow at a police officer without striking the officer and ran from
police for a short distance. This severe variance is unreasonable.” (footnote omitted)).
In contrast to Martinez, Mack has an extensive (and frequently violent) criminal
history, and he has routinely violated the law and endangered the public.
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“The district court had considerable discretion in weighing the sentencing
factors. The court’s decision to weigh them in favor of a lengthy sentence, given the
facts of this case, is a permissible exercise of that discretion. Accordingly, we
conclude that [Mack’s] sentence was substantively reasonable.” Thorne, 896 F.3d at
866 (cleaned up).
III. Conclusion
We affirm the judgment of the district court.
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