United States v. Buck Otto White ( 2018 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-3340
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Buck Otto White, also known as Timothy Joseph Hoffman
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: October 15, 2018
Filed: December 12, 2018
[Unpublished]
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Before SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.
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PER CURIAM.
A jury convicted Buck Otto White of two counts of being a felon in possession
of firearms and ammunition, in violation of 18 U.S.C. § 922(g)(1), and two counts of
possessing stolen firearms and ammunition, in violation of 18 U.S.C. § 922(j). The
district court1 determined that White qualified as an armed career criminal, see 18
U.S.C. 924(e), and White’s advisory sentencing guidelines range was 324 to 405
months. The district court varied downward and sentenced him concurrently on all
four counts to a total term of 300 months’ imprisonment and 5 years’ supervised
release. White later moved to vacate his sentence under 28 U.S.C. § 2255, arguing
that he did not qualify as an armed career criminal. The district court granted the
motion and vacated White’s original sentence. White’s revised guidelines range was
120 to 150 months’ imprisonment. Upon resentencing, the district court varied
upward and imposed a total sentence of 210 months’ imprisonment. This consisted
of concurrent sentences of 120 months for Counts 1 and 3 and concurrent sentences
of 90 months for Counts 2 and 4, with the two concurrent sentences to be served
consecutively. White now appeals, arguing that the revised sentence is substantively
unreasonable.
We review the substantive reasonableness of a sentence under the deferential
abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). “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. Borromeo, 657 F.3d 754,
756 (8th Cir. 2011). Because White’s 210-month sentence exceeded his
recommended guidelines range, we may not apply a presumption of reasonableness
to the sentence, see Gall, 552 U.S. at 51, but it is an “unusual case when we reverse
a district court sentence . . . as substantively unreasonable,” United States v.
Feemster, 572 F.3d 455, 464 (8th Cir. 2009).
1
The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
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White argues that the court abused its discretion by imposing consecutive
sentences at resentencing when it originally imposed concurrent sentences. He notes
that the only difference between the two sentencing hearings was that he no longer
qualified as an armed career criminal and claims that the district court “obviously
sought to get as close as it felt it could get to an ACCA-like sentence . . . by using the
tactic of consecutive sentences.” But the sentencing record makes clear that the
district court adequately explained the basis for White’s revised sentence. The court
observed that it initially varied downward and imposed a 300-month sentence
because it thought that White’s original guidelines range was too high. These same
considerations led to the conclusion that White’s revised guidelines range was too
low. As the court stated, “So just as the guidelines before were too high, the
guidelines . . . don’t really take into account the full criminal history that you have.”
White further argues that the facts of his case do not warrant a total punishment
of 210 months’ imprisonment. He maintains that he is not “a predatory offender, a
violent offender, or a gang member” but simply “a life-long methamphetamine
addict.” But the sentence reflected White’s long history of recidivism. As the court
stated, “As people get to be over the age of 35, they don’t commit crimes anymore.
It’s not really true in your case. It just goes back—it’s very sad, you know, the start
of your experience in the criminal courts and it just never really quits.” For this
reason, the court thought White posed “a danger to the community.” White’s
extensive criminal history includes convictions for tying up and robbing three victims
at gunpoint and for striking a police officer in the head with a closed fist. During this
case, moreover, White absconded from pretrial supervision and led police on a high-
speed chase on snow-covered roads through a densely populated area. We see no
basis for finding the sentence unreasonable and conclude that the district court did not
abuse its discretion.
For all these reasons, we affirm White’s sentence.
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