United States v. Don Elbert, II ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-2340
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Don L. Elbert, II,
lllllllllllllllllllllDefendant - Appellant.
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: September 20, 2021
Filed: December 15, 2021
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Before LOKEN, COLLOTON, and BENTON, Circuit Judges.
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COLLOTON, Circuit Judge.
After Don Elbert, II, violated the conditions of his fourth term of supervised
release, the district court1 revoked his supervised release and sentenced him to
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The Honorable Brian C. Wimes, United States District Judge for the Western
District of Missouri.
twenty-eight months’ imprisonment with no supervised release to follow. Elbert
appeals the sentence, but we see no reversible error and therefore affirm.
In 2007, Elbert was convicted of sex trafficking of a minor, in violation of 18
U.S.C. § 1591. The district court sentenced him to ninety-six months’ imprisonment,
followed by fifteen years of supervised release. Elbert commenced his first term of
supervised release in September 2013, but he repeatedly violated the conditions of
release, and the district court thrice revoked his release and resentenced him before
the instant proceeding. In July 2019, Elbert began his fourth term of supervised
release, and this appeal concerns yet another revocation.
In April and June 2020, the probation office alleged that Elbert committed
several violations of his conditions of supervised release. After a hearing, the district
court found Elbert guilty of violating seven conditions of release, to wit: (1) failing
to pay restitution, (2) failing to report to the probation office as instructed, (3)
associating with a person engaged in criminal activity (i.e., drug use), (4) associating
with a person under the age of 18, (5) failing to participate in a program of sex
offender counseling, (6) committing another crime (i.e., possession of marijuana), and
(7) unlawfully possessing a controlled substance.
The advisory guideline range for Elbert’s violations was a term of six to twelve
months’ imprisonment. The court varied upward from the range and sentenced Elbert
to twenty-eight months’ imprisonment, but declined to impose a new term of
supervised release to follow.
Elbert asserts that the district court committed two procedural errors at
sentencing. Because he did not raise these contentions at the hearing, we review only
for plain error. Fed. R. Crim. P. 52(b). To obtain relief, Elbert must show that there
was an obvious error that affected his substantial rights and seriously affected the
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fairness, integrity, or public reputation of judicial proceedings. United States v.
Olano, 507 U.S. 725, 732 (1993).
Elbert first argues that the district court did not properly determine the most
serious grade of violation for his supervised release revocation or calculate the
applicable guideline range. Failing to calculate the applicable guideline range would
be a significant procedural error. Gall v. United States, 552 U.S. 38, 51 (2007). The
revocation table in the Guidelines Manual sets forth an advisory range of
imprisonment based on the grade of violation and the defendant’s criminal history
category. In this case, the most serious grade of violation was Grade C, and Elbert’s
criminal history category was IV. The corresponding advisory range was six to
twelve months’ imprisonment. See USSG § 7B1.4(a).
The district court did not recite the guideline range at the hearing, but the
record shows that the advisory range was properly calculated in a violation worksheet
that the probation office submitted to the court several days before the proceeding.
We have said before that where the court has before it a revocation packet from the
probation office that includes the proper guideline analysis, and the defendant
requests a sentence recommended by the probation office, then there is no plain error
in the court’s failure to mention the guidelines. United States v. Keatings, 787 F.3d
1197, 1202 (8th Cir. 2015). Here, the violation worksheet calculated the correct
advisory range of six to twelve months’ imprisonment, and Elbert’s attorney asked
for a sentence of “a year and a day”—a tactical request that exceeded the guideline
range by one day, but would allow Elbert to receive good-time credit that is
unavailable for a sentence of twelve months. See 18 U.S.C. § 3624(b). Under these
circumstances, as in Keatings, the defendant has failed to establish that the district
court obviously failed to calculate and consider the guideline range.
Elbert also argues that the district court failed adequately to explain the chosen
sentence based on the factors in 18 U.S.C. § 3553(a). The statute provides that the
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court “shall state in open court the reasons for its imposition of the particular
sentence,” including the specific reason for the imposition of a sentence that varies
from the advisory guideline range. 18 U.S.C. § 3553(c). The court here cited the
nature and circumstances of the particular violations, Elbert’s repeated violations of
supervised release, the need to promote respect for supervised release, and the need
to protect the public from Elbert’s ongoing violations. Elbert did not request a more
detailed explanation, and the court need not “categorically rehearse each of the
§ 3553(a) factors on the record . . . as long as it is clear that they were considered.”
United States v. Dieken, 432 F.3d 906, 909 (8th Cir. 2006). There was no obvious
error in the adequacy of the court’s explanation, and Elbert has not shown a
reasonable probability that a more detailed explanation would have resulted in a more
favorable sentence.
Elbert also challenges the reasonableness of his sentence. We review the
reasonableness of a revocation sentence under the same deferential abuse-of-
discretion standard that applies to initial sentencing proceedings. United States v.
Growden, 663 F.3d 982, 984 (8th Cir. 2011); see Gall, 552 U.S. at 51. Elbert argues
that the court unreasonably varied upward from a range of six to twelve months to a
term of twenty-eight months, but we have frequently approved upward variances
where a defendant is a “recidivist violator” of supervised release conditions. See
United States v. Kocher, 932 F.3d 661, 664 (8th Cir. 2019). Elbert, on his fourth
revocation of supervised release, fits the bill. Given Elbert’s track record of
incorrigibility, it was not unreasonable for the court to impose a term of imprisonment
that exceeded the advisory guideline range, and then to discharge him from
supervision. See United States v. Baker, 491 F.3d 421, 423-24 (8th Cir. 2007).
The judgment of the district court is affirmed.
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