United States v. Kennan Mallory , 192 F. App'x 586 ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-4054
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Kennan R. Mallory, *
* [UNPUBLISHED]
Defendant - Appellant. *
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Submitted: June 12, 2006
Filed: August 24, 2006
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Before LOKEN, Chief Judge, ARNOLD, Circuit Judge, and DOTY,* District Judge.
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PER CURIAM.
Kennan R. Mallory pleaded guilty to conspiracy to distribute cocaine base in
May 2002. He was sentenced to 188 months in prison, but the sentence was later
reduced to 36 months as a result of the government’s motion under Rule 35(b) of the
Federal Rules of Criminal Procedure. Mallory began five years of supervised release
in July 2004. In November 2005, he admitted committing two violations of his
mandatory conditions of supervised release -- possession of drug paraphernalia and
the submission of nine urine samples that tested positive for controlled substances.
*
The HONORABLE DAVID S. DOTY, United States District Judge for the
District of Minnesota, sitting by designation.
The district court1 revoked supervised release and imposed a revocation sentence of
sixty months in prison, the maximum penalty authorized by 18 U.S.C. § 3583(e)(3).
Mallory appeals, arguing the sentence is unreasonable. We affirm.
Chapter 7 of the Sentencing Guidelines includes policy statements regarding
revocation sentences. Because policy statements are advisory, a sentencing court has
always been “entirely free” to impose a sentence outside the Chapter 7 suggested
range when a different sentence is warranted. United States v. Jasper, 338 F.3d 865,
867 (8th Cir. 2003). Thus, the Supreme Court’s decision in United States v. Booker,
543 U.S. 220 (2005), has had a “far less dramatic” impact on our review of revocation
sentences compared to sentences governed by formerly mandatory guidelines
provisions. United States v. Tyson, 413 F.3d 824, 825 (8th Cir. 2005).
Mallory argues that the sixty-month sentence is excessive in view of the
sentencing range recommended in Chapter 7 and the sentencing factors set forth in 18
U.S.C. § 3553(a). He asserts that his suggested Chapter 7 sentencing range is four to
ten months because he committed two Grade C supervised release violations, see
U.S.S.G. § 7B1.1(a)(3), and has a criminal history category of II. The four-to-ten
month range may have been recommended by the probation officer and counsel, but
the district court made no such finding. Given Mallory’s admission that he submitted
eight urine samples testing positive for cocaine over a four-month period, it appears
to us that he likely committed one or more Grade A violations. See U.S.S.G.
§ 7B1.1(a)(1); 21 U.S.C. § 844(a). In that case, his Chapter 7 suggested range is 27-
33 months in prison. See U.S.S.G. § 7B1.4(a). Thus, Mallory’s contention that the
district court imposed a sentence 600% above the suggested guidelines range is
greatly exaggerated.
1
The HONORABLE RICHARD G. KOPF, United States District Judge for the
District of Nebraska.
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The revocation sentence in this case bears a strong resemblance to the sixty-
month sentence we affirmed in United States v. Larison, 432 F.3d 921 (8th Cir. 2006).
First, like Mallory, Larison asserted that the district court ignored a dramatically lower
Chapter 7 suggested range, but Larison had also committed numerous drug-related
supervised release violations after completing his prison term for a prior drug offense.
Second, as in Larison, the district court noted that Mallory was the beneficiary of a
substantial downward departure reducing his prior sentence but then committed
numerous supervised release violations, conduct suggesting a high risk of future
crimes. The Guidelines expressly permit a sentencing court to consider this factor.
See U.S.S.G. § 7B1.4, comment. (n.4). Finally, as in Larison, the district court
expressly considered the sentencing factors set forth in 18 U.S.C. § 3583(e) and
emphasized Mallory’s demonstrated need for intensive in-prison treatment of his
serious drug addiction. In these circumstances, we conclude that Mallory’s revocation
sentence was clearly reasonable.
The judgment of the district court is affirmed.
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