United States v. Bradford Lazarski ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-1926
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Bradford Lazarski, *
*
Defendant - Appellant. *
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Submitted: December 8, 2008
Filed: April 2, 2009
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Before LOKEN, Chief Judge, BEAM and ARNOLD, Circuit Judges.
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LOKEN, Chief Judge.
The district court1 vacated Bradford Lazarski’s initial sentence for being a felon
in possession of a firearm and resentenced him to a substantially reduced term of 108
months in prison. Lazarski appeals this sentence, arguing procedural error, failure to
consider all the sentencing factors enumerated in 18 U.S.C. § 3553(a), and an
unreasonable sentence under Gall v. United States, 128 S. Ct. 586 (2007). We affirm.
1
The HONORABLE JAMES M. MOODY, United States District Judge for the
Eastern District of Arkansas.
When Lazarski and others attempted to sell firearms stolen in Maryland in Pine
Bluff, Arkansas, Lazarski was arrested and eight stolen firearms were recovered. He
pleaded guilty to being a felon in possession. The government dropped other charges.
At sentencing, the district court determined that Lazarski had three prior convictions
for violent felonies, which subjected him to a mandatory minimum fifteen-year
sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), and resulted
in an advisory guidelines sentencing range of 235-293 months in prison. The court
imposed a 200-month sentence. We affirmed. United States v. Lazarski, 161 Fed.
App’x 613, 614 (8th Cir. 2006) (unpublished).
After this Court held in United States v. Livingston, 442 F.3d 1082, 1087 (8th
Cir. 2006), that breaking into a vehicle to commit theft is not a violent felony,
Lazarski filed a timely motion to vacate his sentence under 28 U.S.C. § 2255. The
district court granted the motion, concluding in light of Livingston that two of the
prior convictions were neither violent felonies under 18 U.S.C. § 924(e)(2)(B) nor
crimes of violence under U.S.S.G. § 4B1.2(a). The court determined that Lazarski had
only one prior felony conviction for a crime of violence, resulting in a base offense
level of 20 under § 2K2.1(a)(4)(A), and a total offense level of 29.2 The court also
redetermined Lazarski’s criminal history score. It assessed seven points for Lazarski’s
three 1995 convictions for possession of tools to commit a crime, theft by taking, and
aggravated assault; three points for a 1998 conviction for theft by receiving; and two
points because Lazarski committed the instant offense less than two years after his
release from prison. These twelve criminal history points put Lazarski in criminal
history category V, see U.S.S.G. ch. 5, pt. A, Sentencing Table, resulting in an
advisory guidelines range of 140-175 months in prison, capped by a statutory
2
As in the initial sentencing, the court applied enhancements under § 2K2.1(b)
for eight stolen firearms possessed in connection with another felony offense, plus a
§ 3C1.2 enhancement for recklessly creating a substantial risk of death or serious
injury while fleeing from the police, and a three-level § 3E1.1(b) reduction for
acceptance of responsibility. The total offense level is not at issue.
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maximum sentence of 120 months. See 18 U.S.C. § 924(a)(2). The court again varied
downward and sentenced Lazarski to 108 months in prison.
On appeal, Lazarski first argues that the district court committed procedural
sentencing error by placing him in criminal history category V, rather than in category
II, because he should not have been assessed seven criminal history points for three
offenses that were committed prior to his eighteenth birthday. He relies on
Application Note 3 to § 4A1.1, which states that one point is added under § 4A1.1(c)
for an offense committed prior to the defendant’s eighteenth birthday “only if [the
sentence was] imposed within five years of the defendant’s commencement of the
current offense.” However, six of the seven criminal history points were assessed
under § 4A1.1(a), which expressly applies to prison sentences of more than one year
and one month imposed for offenses committed prior to the defendant’s eighteenth
birthday if the defendant was “convicted as an adult.” See §§ 4A1.1, comment. (n.1);
4A1.2(d)(1). The seventh point was assessed under § 4A1.1(f), which applies to a
sentence that did not receive points under § 4A1.1(a) “because such sentence was
counted as a single sentence.” As Lazarski did not object to PSR statements that he
was convicted as an adult and sentenced to more than one year and one month in
prison for each of the three offenses, the seven points were properly assessed. When
combined with five other points Lazarski does not dispute, this placed him in criminal
history category V. Thus, there was no procedural error.
Lazarski next contends that the district court failed to consider two of the
sentencing factors in 18 U.S.C. § 3553(a), an issue he failed to raise in the district
court. The contention is plainly without merit. We do not require the district court
to mechanically recite the § 3553(a) factors when, as here, it is clear from the record
that the court properly considered those factors. See United States v. Battiest, 553
F.3d 1132, 1136 (8th Cir. 2009); United States v. Walking Eagle, 553 F.3d 654, 659
(8th Cir. 2009); United States v. Perkins, 526 F.3d 1107, 1110-11 (8th Cir. 2008).
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Lazarski’s final contention is that the 108-month sentence is unreasonable. We
review the substantive reasonableness of a sentence under the deferential abuse-of-
discretion standard mandated in Gall, 128 S. Ct. at 597. Here, because the bottom of
Lazarski’s advisory guidelines range is above the 120-month statutory maximum, “the
statutory maximum sentence is presumed reasonable.” United States v. Shafer, 438
F.3d 1225, 1227 (8th Cir. 2006). The district court sentenced Lazarski even more
favorably, varying downward to 108 months. In these circumstances, it is nearly
inconceivable that the court abused its discretion in not varying downward still
further. Cf. United States v. Curry, 536 F.3d 571, 573 (6th Cir.), cert. denied, 129 S.
Ct. 655 (2008). At resentencing, the court stated that it had again considered the
entire sentencing record, including the initial sentencing proceeding, the second PSR,
and statements at sentencing by Lazarski and his sister. The court addressed
Lazarski’s personal history as well as the nature and circumstances of the instant
offense, including his difficult childhood, his history of substance abuse, and his
efforts to educate himself while incarcerated. Thus, the record demonstrates that the
court properly considered the § 3553(a) factors. The sentence imposed was not
unreasonable.
The judgment of the district court is affirmed.
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