United States v. Paul Keating ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-1126
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Paul Keating, *
*
Appellant. *
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Submitted: June 8, 2009
Filed: September 1, 2009
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Before SMITH and SHEPHERD, Circuit Judges, and LIMBAUGH, District Judge.1
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SMITH, Circuit Judge.
Paul Keating was indicted for manufacturing counterfeit currency, in violation
of 18 U.S.C. § 471. Keating pleaded guilty pursuant to a plea agreement. The district
court2 sentenced Keating to 27 months' imprisonment, followed by three years of
1
The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the
Eastern District of Missouri, sitting by designation.
2
The Honorable Warren K. Urbom, United States District Judge for the District
of Nebraska, adopting the report and recommendation of the Honorable David L.
Piester, United States Magistrate Judge for the District of Nebraska.
supervised release, and ordered him to pay $40 in restitution. Keating appeals,
alleging that his sentence is unreasonable. We affirm.
I. Background
Several Lincoln, Nebraska businesses, including Kwik Shop, Walgreens, Sprint,
and Verizon Wireless, reported receiving counterfeit $10 bills. After Keating was
observed on video at a Kwik Shop passing one of the counterfeit bills, he came to the
attention of the Lincoln Police Department and the United States Secret Service. Law
enforcement officers executed a search warrant at Keating's residence and recovered
drug paraphernalia, a color copier, and a straight edge razor cutting device.
Keating pleaded guilty to manufacturing counterfeit currency, in violation of
§ 471. He initially objected to the presentence investigation report but later withdrew
that objection. The district court found Keating's advisory Guidelines range to be 24
to 30 months' imprisonment. Keating requested a downward variance to 18 months'
imprisonment based on his history and characteristics. The district court denied the
request and sentenced Keating to 27 months' imprisonment. This appeal followed.
II. Discussion
On appeal, Keating argues that the district court erred by imposing a sentence
that was greater than necessary to comply with federal sentencing concerns and by
failing to properly consider the 18 U.S.C. § 3553(a) sentencing factors. A failure to
consider the § 3553(a) factors constitutes a significant procedural error. United States
v. McGlothen, 556 F.3d 698, 702 (8th Cir. 2009). The district court is presumed to
know the law in regard to sentencing and need not recite each factor to be upheld. Id.
When we review the § 3553(a) factors, we will look to the entire record. Id.
Keating contends that the district court failed to properly consider his need for
long-term drug treatment. Section 3553(a)(2)(D) provides that the court "shall
consider . . . the need for the sentence imposed . . . to provide the defendant with
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needed educational or vocational training, medical care, or other correctional
treatment in the most effective manner." But the district court adequately discussed
this factor, as well as the other § 3553(a) factors.
First, the district court expressly considered the appropriateness of drug
treatment for Keating, see 18 U.S.C. § 3553(a)(2)(D), stating the following:
Insofar as your drug and alcohol use is concerned, it's longstanding, it's
tough, it's going to be hard to—to fight, but I'm hopeful that you'll do
everything you can to get ahold of that and control it.
I will make sure that the Bureau of Prisons is mindful of how strongly I
feel that you need to be in that long-term drug program. And even if
you're not, there are steps you can take while you're there that will—that
will help some, and might help enough to—to make a dent in the
crippling that your lifestyle so far has created.
Second, the district court also considered the need "to provide just punishment
for the offense," 18 U.S.C. § 3553(a)(2)(A), explaining as follows:
I can't change you, but I can do everything I can do to give you the
opportunity to change. And I think that means a substantial term of
imprisonment, not just for punishment. You need—need to have some
punishment, because you need to understand that when you do things
like defrauding the government, you need to feel some sting for it.
Third, the district court addressed the need to afford adequate deterrence to
criminal conduct," 18 U.S.C. § 3553(a)(2)(B), concluding that imprisonment was
necessary to deter "other people who may be tempted to do the same kind of things
you've done."
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At the sentencing hearing, Keating asked the district court to vary from the
Guidelines because he is 35 years old and has undergone substance abuse treatment
several times. On appeal, he argues that the district court did not consider these facts.
But we have held that where the district court heard argument from counsel about
specific § 3553(a) factors, we may presume that the court considered those factors.
United States v. Miles, 499 F.3d 906, 909 (8th Cir. 2007). In Miles, the defendant
argued that the district court failed to adequately consider the § 3553 factors. Id. at
908. We disagreed, stating:
Because the sentencing record demonstrates that the district court heard
extensive arguments from [the defendant's] counsel and the government,
it is apparent from the record that the district court properly considered
[the defendant's] mental health, his history of drug addiction, his request
for drug treatment, and his mother's health issues, in determining that the
sentence of 70 months was a proper sentence. The district court also
heard [the defendant's] counsel's verbal reminder that the Guidelines are
advisory in nature. Likewise, the district court heard and considered the
government's arguments with respect to the nature and circumstances of
the offense and [the defendant's] criminal history.
Id. at 909 (internal citation omitted). Just as in Miles, the district court heard Keating's
argument as to his age and history of substance abuse treatment. After Keating asked
the court to consider his substance abuse treatment, the district court responded,
"[i]nsofar as your drug and alcohol use is concerned, it's longstanding, it's tough, it's
going to be hard to—to fight . . . ." The district court also stated, "I will make sure that
the Bureau of Prisons is mindful of how strongly I feel that you need to be in that
long-term drug program." Because the sentencing record demonstrates that the district
court heard Keating's arguments pertaining to his age and his history of substance
abuse, the court properly considered those facts.
Keating also makes a cursory argument attacking the overall reasonableness of
the sentence. In reviewing the sentence for reasonableness, we will apply "a standard
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akin to abuse of discretion." United States v. Gallegos, 480 F.3d 856, 858 (8th Cir.
2007). "A sentence within the Guidelines range is accorded a presumption of
substantive reasonableness on appeal." United States v. Phelps, 536 F.3d 862, 868 (8th
Cir. 2008) (quoting United States v. Robinson, 516 F.3d 716, 717 (8th Cir. 2008)).
Here, the 27-month sentence imposed fell within the Guidelines range of 24 to 30
months. Keating has offered neither convincing evidence nor a persuasive argument
that this sentence is unreasonable. On this factual record, because the court considered
the § 3553(a) factors and imposed a sentence within the Guidelines range, it did not
commit error.
III. Conclusion
Accordingly, the district court is affirmed.
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