United States v. Jared Atkins ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-3137
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Jared Atkins
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Western District of Arkansas - Fayetteville Division
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Submitted: September 24, 2018
Filed: January 3, 2019
[Unpublished]
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Before COLLOTON, GRUENDER, and GRASZ, Circuit Judges.
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PER CURIAM.
Jared Atkins appeals the district court’s1 judgment sentencing him to 21 months
of imprisonment based on his guilty plea to burglary of a pharmacy, in violation of
1
The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.
18 U.S.C. § 2118(b). He argues on appeal that the district court engaged in
impermissible double-counting in calculating his U.S. Sentencing Guidelines
(“Guidelines”) range and that his sentence is substantively unreasonable. We find no
error in the district court’s judgment.
When reviewing sentences, “[w]e ‘must first ensure that the district court
committed no significant procedural error.’” United States v. Feemster, 572 F.3d
455, 461 (8th Cir. 2009) (en banc) (quoting Gall v. United States, 552 U.S. 38, 51
(2007)). The procedural error of double-counting “occurs when one part of the
Guidelines is applied to increase a defendant’s punishment on account of a kind of
harm that has already been fully accounted for by application of another part of the
Guidelines.” United States v. Lovato, 868 F.3d 681, 684 (8th Cir. 2017) (quoting
United States v. Hipenbecker, 115 F.3d 581, 583 (8th Cir. 1997)). We review
procedural errors raised for the first time on appeal for plain error. Id.
Atkins’s double-counting argument relies on mislabeling the base offense in
the Guidelines. The applicable provision is entitled “Burglary of a Residence or a
Structure Other than a Residence.” U.S. Sentencing Guidelines Manual § 2B2.1
(U.S. Sentencing Comm’n 2016). It includes an enhancement if a “controlled
substance was taken.” Id. § 2B2.1(b)(3). Atkins may be correct that any pharmacy
burglary automatically receives the enhancement, but he mislabels the base level as
concerning pharmacy burglary when it actually concerns any non-residential
burglary. The enhancement punishes his particular type of non-residential burglary
because the base level did not fully account for certain categories of non-residential
burglary separately designated for additional sanction. See United States v. Narte,
197 F.3d 959, 965 (9th Cir. 1999) (holding that base level does not fully account for
the offense if it is possible to violate the Guidelines section under other statutes
without incurring the enhancement). Thus, the district court did not double-count
when applying the controlled substance enhancement.
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When there is no procedural error, “we ‘should then consider the substantive
reasonableness of the sentence imposed under an abuse-of-discretion standard.’”
Feemster, 572 F.3d at 461 (quoting Gall, 552 U.S. at 51). “[W]e are to ‘take into
account the totality of the circumstances, including the extent of any variance from
the Guidelines range.’” Id. (quoting same). We cannot reverse a district court “[j]ust
because we ‘might reasonably have concluded that a different sentence was
appropriate.’” Id. at 462 (quoting same). We also presume that sentences within the
Guidelines range are substantively reasonable. United States v. Barron, 557 F.3d
866, 870 (8th Cir. 2009).
Atkins’s argument on substantive reasonableness is nothing more than an
invitation for this court to conclude that a different sentence was appropriate. The
district court believed that the aggravating and mitigating factors were relatively
equally balanced. Despite the equal factors, the district court also gave Atkins some
credit by sentencing him at the bottom of his Guidelines range. The only factor in
Atkins’s argument that does not appear explicitly in the district court’s reasoning is
his complete compliance with pretrial release. Avoiding pretrial release violations
may be a relevant factor in sentencing, but Atkins cites no authority stating that the
absence of such violations alone would compel a variant sentence in a case where the
factors are otherwise equal. We also see nothing else in the record indicating that the
district court’s weighing of the factors was not a proper exercise of discretion.
Accordingly, Atkins has not met his burden to overcome the presumption that the
Guidelines sentence was reasonable.
The district court correctly calculated the Guidelines range, and a Guidelines
sentence was within its discretion. We affirm.
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