United States v. Dylan Stone , 873 F.3d 648 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-3987
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Dylan W. Stone
lllllllllllllllllllll Defendant - 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 18, 2017
Filed: October 17, 2017
[Published]
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Before COLLOTON, BENTON, and KELLY, Circuit Judges.
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PER CURIAM.
Dylan W. Stone pleaded guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). The district court1 adopted the uncontested
1
The Honorable Greg Kays, Chief Judge, United States District Court for the
Western District of Missouri.
calculations of Stone’s offense level and criminal history in the presentence report,
which resulted in an advisory Sentencing Guidelines range of 27–33 months. Citing
a number of factors, the court sentenced Stone to an above-Guidelines sentence of 60
months of imprisonment. Stone appeals, arguing the district court erred in imposing
an upward variance.
We “review all sentences—whether inside, just outside, or significantly outside
the Guidelines range—under a deferential abuse-of-discretion standard.” Gall v.
United States, 552 U.S. 38, 41 (2007).2 Stone argues that the district court abused its
discretion in two ways: (1) by considering improper factors in determining his
sentence; and (2) by engaging in an unreasonable weighing of the statutory
sentencing factors listed in 18 U.S.C. § 3553(a), leading to an unjustifiably excessive
sentence.
Stone alleges the district court considered improper factors when, according
to Stone, it declared “categorical rules” that required imposing longer sentences for
federal, rather than state, crimes and imposing longer sentences for a greater history
of recidivism. Such a reading of the transcript, however, takes out of context two
statements the court made during a longer sentencing colloquy. Read in context, it
is apparent that the district court was not relying on categorical rules, but instead was
making individualized observations about Stone’s past conduct and the need for
deterrence in light of Stone’s history and personal characteristics. The “need for
2
The government argues that Stone alleges “procedural” as well as
“substantive” errors, and that the unobjected-to procedural errors should be reviewed
under the even-more-deferential plain error standard. Because we conclude Stone is
not entitled to relief under either standard, we need not decide which standard of
review to apply. See United States v. Kouangvan, 844 F.3d 996, 999–1000 (8th Cir.
2017) (recognizing “apparent conflict” between cases that categorize consideration
of improper factor as a procedural error and cases categorizing it as a challenge to
substantive reasonableness, but declining to resolve the conflict); United States v.
O’Connor, 567 F.3d 395, 397 & n.3 (8th Cir. 2009) (same).
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deterrence” is an authorized—not an improper—statutory factor, and the district court
did not err in taking it into consideration. See 18 U.S.C. § 3553(a)(2)(B).
Similarly, we are unpersuaded by Stone’s contention that the district court
improperly weighed the § 3553(a) factors. When varying from the Guidelines, “[t]he
district court must ‘consider the extent of the deviation and ensure that the
justification is sufficiently compelling to support the degree of the variance.’” United
States v. Martinez, 821 F.3d 984, 989 (8th Cir. 2016) (quoting United States v.
Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc)). However, “‘extraordinary
circumstances’ are not needed to justify a sentence outside the guideline range,” even
if the district court is varying upward. United States v. Hummingbird, 743 F.3d 636,
638 (8th Cir. 2014). “The district court has wide latitude to weigh the § 3553(a)
factors in each case and assign some factors greater weight than others in determining
an appropriate sentence.” United States v. Bridges, 569 F.3d 374, 379 (8th Cir.
2009).
Here, the district court specifically addressed a number of the § 3553(a) factors.
First, it looked at Stone’s history and characteristics3—giving specific attention to the
his employment history and lack of success when previously placed on supervision.
The court then discussed the need to protect the public from further crimes, which the
court described as “something that I think is very real” with respect to Stone. And,
as noted, the court addressed the need for deterrence. The district court also expressly
acknowledged that Stone had accepted responsibility for his offense and was honest
with the court, which “help[ed]” him from receiving an even longer sentence. These
considerations are adequate to support an upward variance in this case. See Gall, 552
3
Although the Guidelines range “already account[s] for . . . prior convictions”
and the defendant’s criminal history, see Martinez, 821 F.3d at 989, it is not
procedural error to consider this factor again in determining the appropriate sentence,
see Hummingbird, 743 F.3d at 637 (“[T]he court is required to consider these factors
under 18 U.S.C. § 3553(a)(1).”).
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U.S. at 51 (“[We] must give due deference to the district court’s decision that the
§ 3553(a) factors, on a whole, justify the extent of the variance.”).
The judgment of the district court is affirmed.
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