United States v. Mark Gilbert ( 2012 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-1616
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United States of America, *
*
Plaintiff – Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Mark Gilbert, *
* [UNPUBLISHED]
Defendant – Appellant. *
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Submitted: January 9, 2012
Filed: January 23, 2012
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Before MURPHY, BYE, and COLLOTON, Circuit Judges.
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PER CURIAM.
Mark Gilbert pleaded guilty to two counts of producing child pornography in
violation of 18 U.S.C. § 2251(a). The district court1 sentenced Gilbert to 360 months
on each count, with 120 months of Count Two to run consecutively and the remainder
to run concurrently, for a total of 480 months’ imprisonment. On appeal, Gilbert
contends the court procedurally erred by not properly applying the 18 U.S.C. § 3553factors, the length of the sentence is substantively unreasonable, and the court erred
in imposing a consecutive sentence. We affirm.
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The Honorable Billy Roy Wilson, United States District Judge for the Eastern
District of Arkansas.
“This court reviews a sentence first for procedural error, and if none, for
substantive reasonableness under an abuse of discretion standard.” United States v.
Jefferson, 652 F.3d 927, 932 (8th Cir. 2011). Because Gilbert failed to object to the
adequacy of the district court’s explanation at sentencing, we review his procedural
challenges for plain error, under which Gilbert must show a plain error that affects his
substantial rights. United States v. Lomeli, 596 F.3d 496, 504 (8th Cir. 2010).
We find no plain error in the district court’s sentence. “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.” United States v.
McKanry, 628 F.3d 1010, 1021 (8th Cir. 2011) (internal quotation marks and citation
omitted). The court explicitly stated it considered the § 3553(a) factors in fashioning
its sentence, and it noted the appropriate statutory maximum sentence and the
Guidelines range. See United States v. Thunder, 553 F.3d 605, 608 (8th Cir. 2009)
(finding no procedural error where the district court declared it was required to take
into account the § 3553 factors, and it recognized the statutory maximum and
Guidelines range). Moreover, the court advised Gilbert it was inclined to reject the
plea agreement and impose a higher sentence than that contemplated under the
agreement; in doing so, the court provided Gilbert with an opportunity to confer with
his counsel to decide whether to withdraw his guilty plea. In sum, the record shows
the court fully considered the § 3553(a) factors and sufficiently explained its decision.
See United States v. Bryant, 606 F.3d 912, 919 (8th Cir. 2010) (concluding the district
court adequately considered the § 3553(a) factors where it reviewed the presentence
investigation report, heard the parties arguments, and referred to the sentencing
factors).
We also conclude the district court’s 480-month sentence, while harsh, is not
substantively unreasonable. “Substantive appellate review in sentencing cases is
narrow and deferential; it will be the unusual case when we reverse a district court
sentence—whether within, above, or below the applicable Guidelines range—as
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substantively unreasonable.” United States v. Kelley, 652 F.3d 915, 918 (8th Cir.
2011) (internal quotation marks and citation omitted). Here, the court expressed its
belief that the 22-year sentence contemplated in the plea agreement was not sufficient
to comply with the sentencing goals of § 3553(a), and it arrived at the chosen sentence
after considering the § 3553(a) factors and addressing the circumstances presented by
Gilbert’s case. See United States v. Shuler, 598 F.3d 444, 447 (8th Cir. 2010) (finding
no abuse of discretion in a 470-month sentence after the court considered the
sentencing factors and the parties’ arguments).
Finally, we conclude the district court’s decision to impose a consecutive
sentence was reasonable. Bryant, 606 F.3d at 920 (noting we review a court’s
imposition of consecutive sentences for reasonableness, which is akin to reviewing for
abuse of discretion). The district court acknowledged the statutory maximum on
Count One and Count Two was 360 months each, while the Guidelines range was life
imprisonment. Accordingly, because the statutory maximum for each individual
count was less than the Guidelines range, the court ran part of the sentence on Count
Two consecutively. After reviewing the record, we conclude the district court did not
abuse its discretion by imposing consecutive sentences. See United States v. Benton,
627 F.3d 1051, 1056 (8th Cir. 2010) (concluding there was no abuse of discretion in
the court’s decision to impose consecutive sentences where the sentences were within
statutory limits, the court considered the appropriate factors, and adequately explained
its reasoning); see also United States v. Heggebo, 416 F. App’x 575, 576 (8th Cir.
2011) (unpublished) (per curiam) (finding no abuse of discretion in the district court’s
consecutive statutory maximum sentences of 360 months and 120 months’
imprisonment where the Guidelines range was life imprisonment, and the court
considered the § 3553(a) factors).
We affirm.
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