United States v. Donald Crane ( 2022 )

United States Court of Appeals
For the Eighth Circuit
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No. 22-1849
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United States of America
Plaintiff - Appellee
v.
Donald Richard Crane
Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: September 19, 2022
Filed: October 24, 2022
[Unpublished]
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Before GRUENDER, MELLOY, and ERICKSON, Circuit Judges.
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PER CURIAM.
Donald Crane appeals his supervised release revocation sentence, claiming
that it is substantively unreasonable. In 2015, Crane was convicted of possession of
a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). The district court 1
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The Honorable Linda Reade, United States District Judge for the Northern
District of Iowa.
sentenced him to 63 months’ imprisonment followed by 3 years’ supervised release.
His supervised release was revoked in November 2020 because he used a controlled
substance and failed to comply with location monitoring. As a result, the district
court sentenced Crane to 12 months and 1 day of imprisonment and 1 year of further
supervised release.
Crane’s second term of supervised release began on September 17, 2021. In
April 2022, the Government again petitioned to revoke his supervised release. The
petition alleged that Crane committed seventeen violations of nine different terms of
his supervised release, including failing to participate in drug testing and treatment,
using a controlled substance, lying to his probation officer, failing to follow the
probation officer’s instructions, interacting with a convicted felon or person engaged
in criminal activity, and using alcohol.
At the revocation hearing, Crane admitted to thirteen of the alleged violations,
and the district court found that he committed the remaining four. The revocation
sentencing guidelines range was 7 to 13 months’ imprisonment. The Government
recommended imprisonment for 23 months without any additional term of
supervised release. Crane argued that a sentence above the guidelines range was
unnecessary and that he should be imprisoned for the remaining term of his
supervised release, which was 5 months. The district court revoked Crane’s
supervised release and sentenced him to 23 months’ imprisonment without
subsequent supervised release. The district court varied above the guidelines range
based on Crane’s lack of rehabilitation, his disrespect for the law, and his repeated
violations. Crane appealed, arguing that his sentence was substantively
unreasonable.
“We review the district court’s revocation sentencing decision under the same
deferential-abuse-of-discretion standard that applies to initial sentencing
proceedings.” United States v. Clark, 998 F.3d 363, 367 (8th Cir. 2021) (internal
quotation marks, brackets, and italics omitted). When determining the sentence to
impose upon revocation of supervised release, the district court must consider some
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of the sentencing factors in 18 U.S.C. § 3553(a), including “the nature and
circumstances of the offense,” § 3553(a)(1), “the history and characteristics of the
defendant,” id., the need for the sentence “to afford adequate deterrence” and “to
protect the public from further crimes of the defendant,” § 3553(a)(2), the guidelines
sentencing range, § 3553(a)(4), and “the need to avoid unwarranted sentence
disparities among defendants with similar records who have been found guilty of
similar conduct,” § 3553(a)(6). See 18 U.S.C. § 3583(e). “The district court has
wide latitude to weigh the § 3553(a) factors in each case and assign some factors
greater weight than others in determining an appropriate sentence.” United States v.
Borromeo, 657 F.3d 754, 757 (8th Cir. 2011). “[I]t will be the unusual case when
we reverse a district court sentence—whether within, above, or below the applicable
Guidelines range—as substantively unreasonable.” United States v. Feemster, 572
F.3d 455, 464 (8th Cir. 2009).
The district court did not abuse its discretion in varying upward to 23 months’
imprisonment. Crane argues that his sentence was substantively unreasonable
because (1) it was imposed to punish him for not being able or willing to stop using
drugs and alcohol, (2) his revocation was based on conduct unrelated to his original
offense, and (3) the district court was biased against him as evidenced by its
statement that it took Crane’s lies to the court personally. None are persuasive. “We
have repeatedly held that it is not unreasonable for a sentencing court to demonstrate
with an upward variance that contemptuous disregard for our laws can have serious
consequences.” United States v. Michels, 49 F.4th 1146, 1149 (8th Cir. 2022). Here,
the district court said it took Crane’s lying personally but later clarified that it was
referring to Crane’s committing perjury. The district court was permitted to consider
Crane’s perjury under § 3553(a)(2)(A), which requires the district court to consider
“the need for the sentence imposed . . . to promote respect for the law.” See United
States v. Waters, 799 F.3d 964, 975 (8th Cir. 2015). Likewise, the district court was
permitted to weigh heavily Crane’s repeated drug and alcohol related violations and
lack of rehabilitation in varying upward. See United States v. Growden, 663 F.3d
982, 984-85 (8th Cir. 2011) (concluding that an above-guidelines-range revocation
sentence was not substantively unreasonable based on the defendant’s repeated
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violations of his supervised release terms, lack of remorse, refusal to take
responsibility, disrespect for the law, and dishonest character); United States v.
Merrival, 521 F.3d 889, 891 (8th Cir. 2008) (affirming a revocation sentence where
the district court varied upward from the guidelines range of 5 to 11 months to 24
months based on the defendant’s recidivism, failure to rehabilitate, and attempted
falsification of a drug test).
Crane also argues that his sentence is substantively unreasonable because
similar conduct in the Northern District of Iowa was punished less harshly. See
§ 3553(a)(6). We disagree. “The statutory direction to avoid unwarranted
disparities among defendants, 18 U.S.C. § 3553(a)(6), refers to national disparities,”
United States v. Pierre, 870 F.3d 845, 850 (8th Cir. 2017), and Crane mentions only
other Northern District of Iowa cases. Moreover, “[w]hen the argument is, as in
this case, that the district court’s sentence created unwarranted disparities with the
sentences imposed on . . . unrelated offenders by . . . different judges, there is no
principled basis for an appellate court to say which defendant received the
‘appropriate’ sentence.” United States v. McElderry, 875 F.3d 863, 865 (8th Cir.
2017) (internal quotation marks omitted).
In sum, the district court considered the appropriate factors, and though Crane
disagrees with how the district court weighed them, we conclude that Crane’s
sentence is not substantively unreasonable. Thus, we affirm Crane’s sentence.
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