United States v. Jeremy Wind ( 2022 )

United States Court of Appeals
For the Eighth Circuit
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No. 21-3135
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United States of America
Plaintiff - Appellee
v.
Jeremy Charles Wind
Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota
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Submitted: March 14, 2022
Filed: May 19, 2022
[Unpublished]
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Before GRUENDER, BENTON, and ERICKSON, Circuit Judges.
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PER CURIAM.
After Jeremy Wind admitted to violating the conditions of his supervised
release, the district court1 varied upward to sentence him to 18 months’
imprisonment with a new term of supervised release to follow. Wind appeals,
1
The Honorable David S. Doty, United States District Judge for the District
of Minnesota.
arguing that the district court failed to provide an adequate explanation for the
sentence and that the sentence is substantively unreasonable. We affirm.
I.
In 2010, Jeremy Wind pleaded guilty to failure to register in violation of the
Sex Offender Registration and Notification Act, 18 U.S.C. § 2250(a), and sexual
abuse in violation of 18 U.S.C. § 2242(2)(B). He was sentenced to a prison term
followed by a supervised release term.
Wind completed his prison term in January 2016 and began his supervised
release term. In October 2016, the district court revoked Wind’s supervised release
due to Wind’s violations of its conditions. The district court imposed a one-year
revocation prison term. Wind was released from that revocation prison term in 2017.
In 2018, the district court once again revoked Wind’s supervised release due to
violations of its conditions and sentenced him to another revocation prison term, this
time followed by a new term of supervised release. Wind was released from custody
in August 2019 and began the new term of supervised release. He violated the
conditions of his supervised release in 2019 and 2020, resulting in yet another
revocation prison term and a new term of supervised release. In September 2020,
Wind began the new term of supervised release.
In September 2021, at another revocation hearing, Wind admitted to violating
the conditions of supervised release again. The district court calculated an advisory
sentencing guidelines range of 5 to 11 months’ imprisonment. Defense counsel
argued against a revocation prison sentence, citing Wind’s difficult childhood and
mental-health history. Wind’s parents abused alcohol, and Wind has been diagnosed
with fetal alcohol syndrome and related disorders. He also has been diagnosed with
an intellectual disability but has been deemed competent for criminal proceedings.
The district court imposed a revocation prison term of 18 months with a new term
of supervised release. Wind appeals.
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II.
“We review a district court’s revocation sentencing decisions using the same
standards that we apply to initial sentencing decisions.” United States v. McGhee,
869 F.3d 703, 705 (8th Cir. 2017) (per curiam). “We must first ensure that the court
committed no significant procedural error, such as improperly calculating the
sentence under the Guidelines, failing to consider relevant 18 U.S.C. § 3553(a)
sentencing factors, imposing a sentence based on clearly erroneous facts, or failing
to adequately explain the reasons for the sentence imposed.” Id. (internal quotation
marks omitted). Where “the defendant did not object to procedural sentencing errors
before the district court, they are forfeited, and therefore may be reviewed only for
plain error.” Id. (internal quotation marks omitted). “Once we are satisfied that the
sentencing decision is free of significant procedural error, we consider the
substantive reasonableness of the length of the sentence under an abuse-of-discretion
standard.” Id. at 706.
A.
First, we address whether the district court committed a procedural error.
Wind first argues that the district court failed to provide an adequate explanation for
its sentence. Specifically, he argues that the district court committed a Tapia error
by treating the prospect of rehabilitation in prison as a reason to extend Wind’s term
of imprisonment. See Tapia v. United States, 564 U.S. 319, 332 (2011). Wind also
argues that the district court did not give due consideration to his intellectual
disability. Wind claims that his disability diminishes his culpability, see Atkins v.
Virginia, 536 U.S. 304, 318 (2002), “[a]nd such diminished culpability is . . . a
highly pertinent fact for a sentencing court to consider when selecting what criminal
penalty a court should impose.” Additionally, according to Wind, “the district court
had nothing to say about [his] disabilities” but instead “opined that a revocation
prison sentence was the only option available.” Though he does not frame them as
such, these claims are procedural in nature. See United States v. Clark, 998 F.3d
363, 367 (8th Cir. 2021) (explaining that, even though the defendant did not frame
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his argument as such, his claim that the district court failed to provide an adequate
explanation for its sentence was procedural in nature); McGhee, 869 F.3d at 705
(stating that “failing to consider relevant 18 U.S.C. § 3553(a) sentencing factors” is
a procedural error); United States v. Straw, 616 F.3d 737, 743-44 (8th Cir. 2010)
(indicating that a district court’s failure to consider a defendant’s mental-health
history is a procedural error).
Because Wind did not raise these claims before the district court, we review
for plain error. See United States v. Krzyzaniak, 702 F.3d 1082, 1085 (8th Cir. 2013).
There is no plain Tapia error where “the district court never expressed an intention
to lengthen [the defendant’s] sentence for rehabilitative purposes.” United States v.
Blackmon, 662 F.3d 981, 987 (8th Cir. 2011). Here, the district court did not express
that intention. Although the district court observed the need for “stability” in Wind’s
life, it never suggested that it was lengthening Wind’s sentence for rehabilitative
purposes. See United States v. Holdsworth, 830 F.3d 779, 784-85 (8th Cir. 2016)
(concluding that the district court’s statement that “‘two, three, four good years of
sobriety and medication and stability’ may be needed for the defendant’s ‘safety and
the safety of the community’” did not constitute a Tapia error). Wind’s “violations
showed he was not amenable to supervised release.” See United States v. Smith, 29
F.4th 397, 398-99 (8th Cir. 2022) (per curiam). The district court “considered the
nature and circumstances of [Wind’s] offense and his history and his characteristics”
and found “that the sentence imposed reflects the seriousness of the offense,
promotes respect for the law and provides just punishment for the supervised release
violation.” See United States v. Replogle, 678 F.3d 940, 943 (8th Cir. 2012) (holding
that there was no “obvious” Tapia error where “[d]eterrence, respect for the law, and
protection of the public were the dominant factors in the district court’s analysis”
and the district court’s reference to the defendant’s treatment was “fleeting”). 2 We
2
18 U.S.C. § 3583(e) lists the sentencing factors district courts must consider
when calculating a revocation prison sentence. It “references all of the sentencing
factors in § 3553(a) with the exception of § 3553(a)(2)(A) (‘the need for the sentence
imposed . . . to reflect the seriousness of the offense, to promote respect for the law,
and to provide just punishment for the offense’) and § 3553(a)(3) (‘the kinds of
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conclude that the district court’s explanation of its sentence does not constitute plain
error. See Krzyzaniak, 702 F.3d at 1085 (“A district court’s explanation must set
forth enough to satisfy the appellate court that it has considered the parties’
arguments and has a reasoned basis for exercising its own legal decision-making
authority.” (internal quotation marks and brackets omitted)).
Second, Wind argues that the district court failed to consider Wind’s
intellectual disability. We disagree. “A district court need not mechanically list
every § 3553(a) consideration when sentencing a defendant upon revocation of
supervised release.” United States v. White Face, 383 F.3d 733, 740 (8th Cir. 2004).
“If it is evident the district court was aware of the relevant factors in imposing the
sentence, we may affirm the sentence without specific findings on each factor.”
United States v. Johnson, 827 F.3d 740, 745 (8th Cir. 2016). Here, the district court
has presided over this matter since Wind’s indictment in 2009. Its involvement has
spanned multiple revocation proceedings. The district court had access to a
presentence investigation report that detailed Wind’s childhood circumstances,
mental and emotional health, and cognitive abilities. Further, Wind admits that the
district court was familiar with him and his general background. See United States
v. Lincoln, 876 F.3d 1137, 1139 (8th Cir. 2017) (noting that the district court judge
who presided over the defendant’s initial sentencing and revocation sentencing was
aware of the defendant’s personal history and that buttressed the district court’s
decision). In sum, we are satisfied that the district court adequately considered
Wind’s intellectual disability when imposing the sentence.
Third, Wind contends that the district court’s decision was based on a
perceived obligation to impose a revocation prison term even though the court was
presented with other recommendations for how to address Wind’s intellectual
sentences available’).” United States v. Hall, 931 F.3d 694, 696 n.2 (8th Cir. 2019).
Wind does not argue that the district court impermissibly considered § 3553(a)
factors not cited in § 3583(e). Therefore, he has waived this argument. See
Chavero-Linares v. Smith, 782 F.3d 1038, 1040 (8th Cir. 2015) (“Claims not raised
in an opening brief are deemed waived.”).
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disabilities. Wind’s argument is based on the district court’s statement that it would
“try to give [Wind] some stability in a way we can do it, the only way we can do it.”
Wind takes the district court’s comment out of context. The district court expressly
recognized that it could revoke, extend the term of, or modify the conditions of
Wind’s supervised release. In fact, the district court had tried the non-prison options
in Wind’s case previously and knew it could do so again. But the district court,
recognizing that none of these options was working for Wind, chose to impose a
revocation prison term because, based on Wind’s history, it looked like the “only”
option that might work. We conclude that the district court did not base its decision
on the incorrect notion that it was obligated to impose a revocation prison term.
B.
Now we turn to Wind’s argument about substantive reasonableness. He
argues that the district court placed too much weight on his prior violations of
supervised-release conditions. Wind concedes that “[i]n the generic case, a history
of prior violations may well justify an above-Guidelines revocation term,” see, e.g.,
United States v. Johnson, 827 F.3d 740, 743-45 (8th Cir. 2016), but insists that this
is not a generic case because of his intellectual disabilities. Wind concludes that the
upward variance to 18 months’ imprisonment from a guidelines range of 5 to 11
months’ imprisonment was substantively unreasonable.
We conclude that “[t]here was no abuse of the district court’s substantial
sentencing discretion.” See United States v. Kocher, 932 F.3d 661, 664 (8th Cir.
2019). “We have frequently upheld revocation sentences that varied upward from
the advisory guidelines range because [the] defendant was a recidivist violator of
supervised release conditions.” Id. (internal quotation marks omitted); see, e.g.,
Johnson, 827 F.3d at 743-45. Contrary to Wind’s argument, his intellectual
disabilities do not negate the relevance of his history of recidivism. See United
States v. Elodio-Benitez, 672 F.3d 584, 585-86 (8th Cir. 2012) (affirming a decision
in which the defendant’s low intellectual functioning and mental-health problems
did not negate the pertinence of his recidivist actions). “This is not ‘the unusual case
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when we reverse a district court sentence—whether within, above, or below the
applicable Guidelines range—as substantively unreasonable.’” Kocher, 932 F.3d at
664 (quoting United States v. Feemster, 572 F.3d 455, 464 (8th Cir. 2009) (en banc)).
III.
For the foregoing reasons, we affirm Wind’s sentence.
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