United States v. Jeremy Saul ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-2863
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Jeremy Saul
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Western
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Submitted: September 20, 2021
Filed: November 8, 2021
[Unpublished]
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Before LOKEN, COLLOTON, and BENTON, Circuit Judges.
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PER CURIAM.
Jeremy Saul pleaded guilty to a felon-in-possession charge and served a 51-
month prison sentence. He began a two-year term of supervised release on May 1,
2020. On June 29, his probation officer petitioned the district court to revoke
supervised release after numerous unsuccessful attempts to contact Saul when he
stopped reporting to the probation officer. On July 28, after Saul’s arrest, the
probation officer filed a supplemental and substituted petition to revoke alleging six
Grade C violations of supervised release conditions.
Saul pleaded guilty to two of the six violations, failure to report (Violation 1)
and travel without permission (Violation 6), both standard conditions of supervised
release. See USSG § 5D1.3(c)(2), (3). Saul admitted the petition’s factual allegations
substantiating those violations. The other charges were dismissed. The two Grade
C violations, coupled with Saul’s Category VI criminal history, resulted in an
advisory guidelines revocation sentencing range of 8-14 months imprisonment. See
USSG § 7B1.4(a). The district court1 revoked supervised release and imposed an
eight-month sentence with one year of supervised release. On appeal, Saul argues
the court improperly relied on facts from a dismissed charge and imposed a
substantively unreasonable sentence. We affirm.
At the revocation hearing, the district court granted the government’s motion
to withdraw charged violations 2-5 and twice stated it was not considering those
charges. In arguing for a time-served revocation sentence, defense counsel referred
to Violation 6: “after . . . his probation officer . . . indicated . . . there was a warrant,
he thought, well . . . I’m going to jail; I’m going to show my kid a good time at
Adventureland before that happens.” In explaining the eight-month sentence, the
district court stated, “the petition [for revocation] says that Mr. Saul’s girlfriend
reported that he was living at a residence in Altoona. This wasn’t a one-day joyride
to Adventureland.”
On appeal, Saul first argues his sentence was based in part on an improper
factor, citing the district court’s reference to Saul’s failure to notify his probation
officer of a change in residence to Altoona, Iowa, which was withdrawn Violation 2.
1
The Honorable Leonard T. Strand, Chief Judge of the United States District
Court for the Northern District of Iowa
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This argument is without merit. First, Saul made no objection at the revocation
hearing, so we review the issue for plain error. See United States v. Mendoza, 782
F.3d 1046, 1048 (8th Cir. 2015). Second, the reference to the petition’s allegation
that Saul was living in Altoona -- an allegation he admitted in pleading guilty to
Violation 6, travel without permission -- was solely a rebuttal to Saul’s asserted
justification for the violation. The hearing transcript makes clear the court imposed
an eight-month prison sentence because of Saul’s criminal history, multiple previous
probation violations, and the timing of the current violations. Third, sentencing
courts can properly rely on dismissed charges when fashioning a sentence if the
government proves the underlying conduct by a preponderance of the evidence. See
United States v. Brave Bull, 828 F.3d 735, 739 (8th Cir. 2016).
Saul further argues the eight-month sentence was substantively unreasonable.
In addition to admitting and apologizing for his violations, Saul explained that the
failure to report violation was due to a misunderstanding with his parole officer after
he was diagnosed with COVID-19 in May. He justified his travel without permission
as an attempt to give his daughter a positive experience and noted the positive steps
he has taken to productively reenter society -- completing programs in prison, finding
a job upon release, and enrolling in an HVAC training program. Framing his
violations as misunderstandings and “selfish and stupid” mistakes rather than
attempts to “thumb[] his nose at the system,” Saul argues an eight-month sentence
was greater than necessary under the 18 U.S.C. § 3553(a) sentencing factors.
A revocation of supervised release is reviewed under the same “deferential
abuse-of-discretion standard” as applies to an initial sentence. United States v.
Growden, 663 F.3d 982, 984 (8th Cir. 2011) (citation omitted). Saul’s eight-month
sentence at the bottom end of his guidelines-range is presumptively reasonable.
United States v. Dunn, 928 F.3d 688, 694 (8th Cir. 2019). The same judge presided
over his revocation and initial sentence and was fully aware of his background and
character. See United States v. Holmes, 489 F. App’x 977, 979 (8th Cir. 2012). The
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district court noted its obligation to consider the § 3553(a) factors and provided Saul
and defense counsel ample opportunity to argue for a below-guidelines sentence, but
determined that an eight-month sentence was appropriate given his extensive criminal
history, two similar violations during previous paroles, and the fact that these
violations began only a month after his release from prison. The district court did not
abuse its substantial revocation sentencing discretion.
The judgment of the district court dated August 31, 2020, is affirmed.
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