United States v. Scott K. Goldsmith , 275 F. App'x 566 ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 06-2965
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Scott Kimrey Goldsmith, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: February 13, 2008
Filed: May 2, 2008
___________
Before RILEY, MELLOY, and SHEPHERD, Circuit Judges.
___________
PER CURIAM.
This case is before us on remand from the United States Supreme Court for
reconsideration in light of Gall v. United States, 128 S. Ct. 586 (2007). After
reconsidering Goldsmith’s sentence as directed by the Supreme Court, we affirm the
district court’s1 sentence of 33 months of imprisonment.
Goldsmith appealed to this court the sentence imposed by the district court after
his plea of nolo contendere to twelve felony counts of failing to pay over withheld
1
The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota.
taxes and four misdemeanor counts of failing to file individual income tax returns.
See 26 U.S.C. §§ 7202, 7203. The district court calculated an advisory Sentencing
Guidelines range of 33 to 41 months imprisonment and sentenced Goldsmith at the
bottom of that range, 33 months of imprisonment. Further explanation of the
underlying facts may be found at United States v. Goldsmith, 486 F.3d 404 (8th Cir.
2007), vacated, 128 S. Ct. 893 (2008).
On appeal, this court rejected both of Goldsmith’s sentence-related contentions.
First, we found that the record did not support his assertion that the district court
refused to depart downward on the basis of his alleged diminished capacity, see
United States Sentencing Commission, Guidelines Manual, § 5K2.13 (Nov. 2002) (“A
sentence below the applicable guidelines range may be warranted if the defendant
committed the offense while suffering from a significantly reduced mental capacity.”),
based upon an erroneous belief that it lacked the authority to depart because the
district court stated, on the record, that it was not granting the departure because this
was “not an unusual case justifying a departure from the guideline range.” Second,
we determined that none of Goldsmith’s arguments demonstrated that his sentence
was unreasonable.
Pursuant to Gall, in “review[ing] the imposition of sentences, whether inside
or outside the Guidelines range, we apply ‘a deferential abuse-of-discretion
standard.’” United States v. Hayes, 518 F.3d 989, 995 (8th Cir. 2008) (quoting Gall,
128 S. Ct. at 591). Goldsmith’s 33-month sentence is within a properly calculated
Guidelines range, which we presume reasonable. Id. (citing Rita v. United States, 127
S. Ct. 2456, 2462 (2007)). At sentencing, the district court articulated its reasoning
for the sentence imposed, considering the seriousness of the offense as well as the
requirements that the sentence promote respect for the law, afford adequate
deterrence, provide just punishment, and protect the public. See 18 § U.S.C.
3553(a)(2)(A)-(C). This court’s pre-Gall requirement that an extraordinary variance
be justified by extraordinary circumstances was not applied by the district court in
-2-
sentencing Goldsmith nor by this court in affirming his sentence. See Goldsmith, 486
F.3d 404. So the fact that, “our standard of review is more deferential than when we
employed the ‘extraordinary circumstances’ method,” United States v. Braggs, 511
F.3d 808, 812 (8th Cir. 2008), does not call into question Goldsmith’s sentence.
Rather, Gall strengthens this court’s previous affirmance of the sentence in that,
because Goldsmith alleges none of the “significant procedural errors” outlined by
Gall, and we find none, the sentence is “procedurally sound,” see 128 S. Ct. at 597.
Therefore, we apply Gall’s “more deferential” abuse-of-discretion standard, see
Braggs, 511 F.3d at 812, and affirm Goldsmith’s sentence. Goldsmith’s motion for
remand and release is denied.
______________________________
-3-