United States v. Abdul Vann , 364 F. App'x 279 ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-2126
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Abdul F. Vann, *
* [UNPUBLISHED]
Appellant. *
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Submitted: October 19, 2009
Filed: December 7, 2009
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Before COLLOTON, BEAM, and BENTON, Circuit Judges.
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PER CURIAM.
After Abdul Vann admitted a violation of the terms of his supervised release,
the district court1 revoked his term of supervised release and sentenced him to one
year and one day in prison. Vann appeals the sentence, and we affirm.
In 2004, Vann pled guilty to the crime of unlawful possession of a firearm as
a previously convicted felon, in violation of 18 U.S.C. § 922(g). The court sentenced
1
The Honorable Joseph F. Bataillon, United States District Judge for the District
of Nebraska.
him to thirty months’ imprisonment, to be followed by three years of supervised
release. In early January 2009, after thirty months on supervised release, Omaha
police stopped a vehicle that Vann was driving and discovered an open container of
alcohol and cocaine residue in the vehicle. Vann pled no contest in state court to
attempted possession of a controlled substance. He was sentenced to 120 days in jail
by the Douglas County District Court.
While the state proceedings were pending, the United States Probation Office
filed a petition in the district court, alleging that Vann violated his conditions of
supervised release. At a revocation hearing, Vann admitted his no-contest plea in state
court on the charge of attempted possession of cocaine, and the district court found
that Vann’s offense constituted a violation of the terms of his supervised release. The
statutory sentencing range for this violation was zero to two years’ imprisonment, 18
U.S.C. § 3583(e)(3), and the advisory sentencing guidelines range was eight to
fourteen months. USSG § 7B1.4(a). The district court sentenced Vann to one year
and one day of imprisonment.
Vann asserts on appeal that the district court imposed an unreasonable sentence.
Although 18 U.S.C. § 3742(e)(4) provides that the court of appeals should review a
revocation sentence to determine whether it is “plainly unreasonable,” our court has
applied the same “unreasonableness” standard to both initial sentencing decisions and
revocation proceedings after United States v. Booker, 543 U.S. 220 (2005). United
States v. Bear Robe, 521 F.3d 909, 910-11 (8th Cir. 2008). We review the district
court’s selection of a sentence under a deferential abuse-of-discretion standard,
United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc), and we have
observed that it will be the unusual case, after Gall v. United States, 552 U.S. 38
(2007), in which we reverse a district court’s sentence as substantively unreasonable.
Feemster, 572 F.3d at 464. Where, as here, the sentence imposed is within the
advisory guideline range, we also presume that it is reasonable. United States v.
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Boothe, 491 F.3d 916, 917 (8th Cir. 2007); Rita v. United States, 551 U.S. 338, 347
(2007).
The statute governing revocation of supervised release, 18 U.S.C. § 3583(e)(3),
provides that a court imposing a revocation sentence must consider several of the
factors listed in 18 U.S.C. § 3553(a). Vann argues that several of the relevant
§ 3553(a) factors weigh in favor of a more lenient sentence. He suggests that the
district court overstated the nature and seriousness of his offense, given his
completion of eighty-three percent of his supervised release term, the non-violent
character of his drug offense, his ability to maintain employment during his
supervision term, and his attempts to continue his education. He asserts that his
history and characteristics are suited to a shorter sentence, because he has “showed
that he can be, and was, successful outside of incarceration.” (Vann Br. 6). And he
relies on the short sentence imposed by the State for his recent drug offense as
evidence that he poses no danger to the public.
The district court was presented with all of this information, but found it
unpersuasive. The court was entitled to make a different assessment of the
seriousness of Vann’s drug offense, to consider Vann’s extensive criminal history
(which placed him in Category VI at his original sentencing hearing), and to conclude
that substantial incarceration was warranted to protect the public and deter unlawful
conduct. The court permissibly concluded that Vann’s attempt to possess cocaine
while on supervised release for a firearms offense, together with his criminal history,
outweighed the mitigating factors cited by Vann and justified a sentence within the
presumptively reasonable guideline range. The court’s evaluation falls within the
wide range of discretion available to the district court.
The judgment of the district court is affirmed.
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