United States v. Shelton Larkin ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-1604
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Shelton Larkin, *
* [UNPUBLISHED]
Appellant. *
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Submitted: November 16, 2009
Filed: December 21, 2009
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Before WOLLMAN, RILEY, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Shelton Larkin appeals from the sentence imposed by the district court1 after
revocation of his supervised release, arguing that the court erred and imposed an
unreasonable sentence. We affirm.
In 2002, Larkin pleaded guilty to possession with intent to distribute more than
five grams of cocaine and was sentenced to 100 months’ imprisonment, to be followed
by five years of supervised release. After having his sentence reduced pursuant to 18
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The Honorable Carol E. Jackson, United States District Judge for the Eastern
District of Missouri.
U.S.C. § 3582, Larkin began serving his term of supervised release on August 1, 2008.
The St. Louis City Police arrested Larkin on November 4, 2008, charging him with
unlawful use of a weapon and drug trafficking in the second degree. Following a
hearing, the district court revoked Larkin’s supervised release and imposed a sentence
of thirty months’ imprisonment and an additional thirty months of supervised release.
After reviewing the record, we conclude that the district court did not commit
procedural error or impose an unreasonable sentence. The district court correctly
computed the applicable guideline range, and Larkin does not argue that the court
failed to recognized its discretion in imposing a sentence. The court also noted a
number of factors that influenced its sentencing decision, including the following:
Larkin committed a crime while on supervised release; Larkin’s crime was serious and
not merely a technical violation of the conditions of his release; Larkin committed the
new crime within months of being released from prison; and the public expects the
court to take seriously its supervisory role and act appropriately when individuals fail
to abide by the terms of their supervised release.
The record thus belies Larkin’s contention that the district court insufficiently
explained the sentence. Moreover, we agree with the government that Larkin failed
to preserve the error because he objected only on the basis that the court had given
insufficient weight to certain factors under 18 U.S.C. § 3553(a), rather than on the
ground that the court failed to explain its sentence. Larkin has not demonstrated error,
much less plain error. See United States v. Miller, 557 F.3d 910, 916 (8th Cir. 2009)
(holding that sentencing errors are forfeited, and thus subject only to plain error
review, if no objection is made in the district court); United States v. McGlothen, 556
F.3d 698, 703 (8th Cir. 2009) (“If the sentence imposed is within the Guidelines and
the case is not atypical, a district court may rest its decision on the Sentencing
Commission’s reasoning.”). We also conclude that the district court did not abuse its
discretion in imposing a thirty-month sentence, as the sentence is within the guideline
range and was based on relevant factors under § 3553(a), in particular the seriousness
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of the violation and the fact that it was committed shortly after Larkin had begun
serving his term of supervised release. See United States v. Wynn, 553 F.3d 1114,
1119 (8th Cir. 2009) (standard of review).
The judgment is affirmed.
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