United States v. Craig Kiertzner ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-1961
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the District
* of Nebraska.
Craig J. Kiertzner, *
* [PUBLISHED]
Defendant - Appellant. *
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Submitted: December 12
Filed: August 21, 2006
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Before MELLOY, COLLOTON, and BENTON, Circuit Judges.
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PER CURIAM.
Craig Kiertzner pleaded guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). The facts underlying his plea involved his receipt,
possession, and offer for sale of eleven firearms allegedly owned by his father. The
plea agreement included a recommendation for an offense-level adjustment based on
acceptance of responsibility and a recommendation for sentencing at the low end of
the Guidelines range. Kiertzner entered his plea on November 1, 2004. Prior to
sentencing, the Supreme Court issued its decision in United States v. Booker, 543 U.S.
220 (2005).
At sentencing, Kiertzner alleged that his possession of the firearms did not
involve the type of harm or risk of harm envisioned by Congress when Congress
prohibited felons from possessing firearms. Rather, he alleged that he merely
possessed the firearms temporarily in order to dispose of them, by sale, for his aged
and infirm father. Based on this argument, he made specific requests for traditional
departures under U.S.S.G. §§ 5K2.0 (outside the heartland) and 5K2.11 (lesser
harms). He also requested, based on the logic of his arguments for these traditional
departures and all of the factors under 18 U.S.C. § 3553(a), that the district court1
exercise its discretion under Booker to sentence below the Guidelines range.
The district court recognized its authority under Booker and treated the
Guidelines as advisory. It considered and rejected the defendant’s specific requests
for traditional departures, granted a two level downward adjustment based on
acceptance of responsibility, and sentenced Kiertzner at the bottom of the applicable
Guidelines range, forty-one months. We now know, post-Booker, that it is necessary
for sentencing courts to calculate the applicable, advisory Guidelines range, including
any traditional departures or reductions, and use that range as one of the factors under
§ 3553(a) to determine an overall, reasonable sentence. United States v. Haack, 403
F.3d 997, 1002-03 (8th Cir. 2005). We continue to hold, post-Booker, that a
sentencing court’s discretionary refusal to grant a traditional departure is unreviewable
as long as the court recognized its authority to depart. United States v. Morell, 429
F.3d 1161, 1164 (8th Cir. 2005). Here, because the district court properly understood
its authority under U.S.S.G. §§ 5K2.0 and 5K2.11, its decision not to grant a
traditional departure is unreviewable. Regarding the overall reasonableness of the
1
The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
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sentence, a sentence within the Guidelines range is presumptively reasonable in our
circuit. United States v. Marcussen, 403 F.3d 982, 985 n.4 (8th Cir. 2005). In the
application of § 3553(a) to the present case, we find nothing that justifies deviation
from this general rule. The sentence imposed is reasonable.
The judgment of the district court is affirmed.
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