United States v. Kennett McElderry , 875 F.3d 863 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 16-3618
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Kennett James McElderry
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the District of Minnesota - St. Paul
____________
Submitted: October 16, 2017
Filed: November 16, 2017
[Published]
____________
Before LOKEN, MURPHY, and COLLOTON, Circuit Judges.
____________
PER CURIAM.
Kennett McElderry pleaded guilty to one count of distribution of child
pornography in violation of 18 U.S.C. §§ 2252(a)(2) and 2252(b)(1). The district
court1 determined that his advisory guideline range was 235 to 240 months in prison.
Varying downward, the court imposed a 130-month sentence. McElderry appeals,
arguing that his sentence is substantively unreasonable because the district court
abused its discretion in failing to consider the sentences of other similarly situated
defendants in the District of Minnesota who were less cooperative and more culpable,
and had more extensive criminal histories than McElderry. We affirm.
Prior to sentencing, McElderry’s attorney submitted a lengthy Sentencing
Memorandum that urged the court to impose a 60-month sentence, the statutory
mandatory minimum, based primarily on his extensive cooperation with law
enforcement, the nature of his crime, his behavior while on pre-trial release, his
expression of remorse, and his overstated criminal history. Near the end, the
Memorandum compared the sentences imposed by six District of Minnesota judges
on thirteen defendants convicted of prior, unrelated child pornography offenses. At
sentencing, the district court stated that it had considered the 18 U.S.C. § 3553(a)
sentencing factors “and finds that the [130-month] sentence imposed is sufficient and
not greater than necessary to afford adequate deterrence to future criminal conduct.”
Defense counsel urged the court to reconsider because in other cases “there’s been
prior hands-on offenses or prior viewing where people have gotten less time.” The
court noted that it had read that portion of the Sentencing Memorandum and declined
to reconsider the sentence.
On appeal, McElderry argues that his sentence is greater than necessary
because the district court failed to consider a mandatory sentencing factor: “the need
to avoid unwarranted sentence disparities among defendants with similar records who
have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). Comparing his
1
The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
-2-
sentence “to other defendants convicted of similar crimes,” McElderry argues, “it is
clear his sentence is unreasonable.”
Although sentencing-disparity arguments are properly raised to the district
court, “we decline to impose a procedural requirement that a district judge . . . must
compare and contrast the defendant under consideration with a similar offender who
has been sentenced by another federal judge.” United States v. Barron, 557 F.3d 866,
869 (8th Cir. 2009). As we said in United States v. Soliz, 857 F.3d 781, 783 (8th Cir.
2017) (citations omitted):
The sentencing practices of one district court are not a reference
point for other courts. An argument that non-conspirator defendants
received shorter sentences for comparable offenses is at base a
disagreement with the weighing of the § 3553(a) factors. This
disagreement does not demonstrate an abuse of discretion.
McElderry correctly notes that we did remand for resentencing two similarly
situated co-conspirators who were given extremely disparate sentences by different
district judges in United States v. Lazenby, 439 F.3d 928 (8th Cir. 2006). But we
have limited that decision to the “unusual circumstances” there presented, which
included “a consolidated appeal involving both conspirators that permitted a remand
for resentencing of both parties.” United States v. Fry, 792 F.3d 884, 892-93 (8th Cir.
2015). When the argument is, as in this case, that the district court’s sentence created
unwarranted disparities with the sentences imposed on thirteen unrelated offenders
by six different judges, “there is no principled basis for an appellate court to say
which defendant[s] received the ‘appropriate’ sentence.” Id. at 893 (citation omitted).
Thus, McElderry’s reliance on § 3553(a)(6) on appeal is misplaced.
Reviewing the substantive reasonableness of McElderry’s sentence under our
deferential standard, we conclude that the district court did not abuse its discretion
-3-
by imposing a substantively unreasonable sentence. See United States v. Feemster,
572 F.3d 455, 461 (8th Cir. 2009) (en banc) (standard of review).
The judgment of the district court is affirmed.
______________________________
-4-