United States v. James Moore , 405 F. App'x 86 ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-2043
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
James Frank Moore, *
* [UNPUBLISHED]
Appellant. *
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Submitted: December 13, 2010
Filed: December 27, 2010
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Before LOKEN, ARNOLD, and BYE, Circuit Judges.
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PER CURIAM.
James Frank Moore appeals the thirteen-month term of imprisonment he
received after violating the terms of his supervised release. He contends the district
court1 abused its discretion by selecting a term of thirteen months. We affirm.
Moore pleaded guilty to transporting firearms unlawfully and was sentenced to
twenty-four months of imprisonment followed by three years of supervised release.
Eight months after he began serving his term of supervised release, the government
1
The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
moved to revoke supervised release alleging Moore had committed ten violations.
After an evidentiary hearing, the district court determined Moore had committed three
violations of supervised release. The three violations were considered Grade C
violations under United States Sentencing Guidelines Manual (U.S.S.G.) § 7B1.1.
Based on Moore's criminal history, the Grade C violations triggered an advisory
guidelines range of 7-13 months pursuant to U.S.S.G. § 7B1.4.
After "considering all of the statutory factors" under 18 U.S.C. § 3553(a), the
district court stated a "concern[] about Mr. Moore's lack of progress while on
supervised release, his failure to comply with the directives of the probation officer
and to participate in the rehabilitation programs and also his contacts with law
enforcement." The district court then chose to "impose a guideline sentence" of
thirteen months.
Moore contends the district court erred by not fully considering all of the
factors set forth in § 3553(a) and abused its discretion by imposing an excessive and
unreasonable sentence. More specifically, Moore asserts the district court failed to
account for the "technical" nature of the Grade C violations and overlooked his
successes while on supervised release, such as being employed, being enrolled in
college, and testing negative for drugs throughout the duration of his supervised
release.
Reviewing the sentence for reasonableness (a standard akin to abuse of
discretion), United States v. Gallegos, 480 F.3d 856, 858 (8th Cir. 2007), we find no
grounds for reversing Moore's sentence. Our review of the record reflects "the district
court considered the defendant's circumstances, the § 3553(a) factors, and the advisory
guidelines range." United States v. Swehla, 442 F.3d 1143, 1145 (8th Cir. 2006). The
district court then chose a sentence within the advisory guidelines range, which is
presumed reasonable. Id. In addition, "[n]othing in the record suggests that the
district court based its sentence on an 'improper or irrelevant factor' or neglected 'to
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consider a relevant factor.'" United States v. Lincoln, 413 F.3d 716, 717 (8th Cir.
2005) (quoting United States v. Haack, 403 F.3d 997, 1004 (8th Cir. 2005)). Other
than his claim the district court should have imposed a lesser sentence based on
certain aspects of his history, characteristics, and the circumstances surrounding the
offense, 18 U.S.C. § 3553(a)(1), Moore "offer[s] nothing to indicate that his sentence
offends the § 3553(a) factors." United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.
2005).
Accordingly, we affirm.
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