United States v. John L. Heavner , 258 F. App'x 57 ( 2007 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ________________
    No. 06-3325
    ________________
    United States of America,              *
    *
    Appellee,                 *
    *      Appeal from the United States
    v.                               *      District Court for the
    *      Western District of Missouri.
    John L. Heavner,                       *
    *      [UNPUBLISHED]
    Appellant.                *
    ________________
    Submitted: December 10, 2007
    Filed: December 14, 2007
    __________________
    Before LOKEN, Chief Judge, O’CONNOR,* Associate Justice (Ret.) and
    GRUENDER, Circuit Judge.
    ________________
    PER CURIAM.
    This case is before us on remand from the United States Supreme Court for
    reconsideration in light of Rita v. United States, 551 U.S. ---, 
    127 S. Ct. 2456
     (June
    21, 2007). In Rita, the Supreme Court held that the “presumption [of reasonableness]
    applies only on appellate review.” Rita, 
    127 S. Ct. at 2465
    . “[T]he sentencing court
    does not enjoy the benefit of a legal presumption that the Guidelines sentence should
    *
    The Honorable Sandra Day O’Connor, Associate Justice of the United States
    Supreme Court, (Ret.), sitting by designation, pursuant to 
    28 U.S.C. § 294
    (a).
    apply.” 
    Id.
     After reconsidering Heavner’s sentence as directed by the Supreme Court,
    we affirm.
    Heavner pled guilty to one count of bank robbery in violation of 
    18 U.S.C. § 2113
    (a). The district court1 sentenced Heavner to 151 months’ imprisonment, a
    sentence within his advisory sentencing guidelines range of 151 to 188 months.
    Heavner appealed his sentence, and this court affirmed the district court’s sentence.
    Further discussion of the underlying facts may be found at United States v. Heavner,
    
    227 Fed. Appx. 524
     (8th Cir.), vacated, --- U.S. ---, 
    76 U.S.L.W. 3223
     (U.S. Oct. 29,
    2007) (No. 07-5473).
    At sentencing, the district court followed the three-step procedure outlined in
    United States v. Haack, 
    403 F.3d 997
    , 1002-03 (8th Cir. 2005). It first determined the
    appropriate guidelines range, it then decided whether a traditional departure was
    appropriate, and it finally considered the other 
    18 U.S.C. § 3553
    (a) factors. See 
    id.
    While the district court also noted that a sentence within the advisory guidelines range
    was presumptively reasonable, Heavner did not object or argue at sentencing that the
    district court’s use of this presumption was incorrect. Therefore, we now review his
    sentence for plain error. See United States v. Pirani, 
    406 F.3d 543
    , 550 (8th Cir.
    2005) (en banc).
    Under plain error review, the defendant has the burden of proof. 
    Id.
     (citing
    United States v. Olano, 
    507 U.S. 725
    , 734-35 (1993)). He must prove that there was
    “(1) error, (2) that [was] plain, and (3) that affect[ed] substantial rights. If all three
    conditions are met, an appellate court may then exercise its discretion to notice a
    forfeited error, but only if (4) the error seriously affects the fairness, integrity, or
    public reputation of judicial proceedings.” 
    Id.
     (quoting Johnson v. United States, 520
    1
    The Honorable Ortrie D. Smith, United States District Judge for the Western
    District of Missouri.
    -2-
    U.S. 461, 466-67 (1997)). The district court committed error by stating that a
    sentence within the advisory guidelines range was presumptively reasonable. The
    error is plain at this time. See 
    id.
     However, this error did not affect substantial rights
    and was not prejudicial to Heavner because the record does not reveal any “reasonable
    probability that he would have received a more favorable sentence” without the
    presumption. Id. at 551. The district court followed the correct procedure and
    considered the nature and circumstances of Heavner’s bank robbery offense; the
    history and characteristics of Heavner; and the need for the sentence to reflect the
    seriousness of Heavner’s crime, promote respect for the law, provide a just
    punishment, protect the public from further crimes, provide Heavner with the
    necessary educational and medical care, and avoid unwarranted sentence disparities
    among similar defendants involved in similar crimes. After this proper consideration
    of the § 3553(a) factors, the district court announced that “a sentence within the
    guideline range is an appropriate sentence.”
    While the district court also noted that it regretted the impact its sentence would
    have on Heavner before concluding that his sentence was “required under the law,”
    this general statement does not satisfy Heavner’s burden to prove that the district court
    would have imposed a shorter sentence had it not made the erroneous presumption.
    See Pirani, 
    406 F.3d at 553
     (“[W]here the effect of the error on the result in the
    district court is uncertain or indeterminate—where we would have to speculate—the
    appellant has not met his burden of showing a reasonable probability that the result
    would have been different but for the error.”) (quotation omitted). Because the district
    court stated that it believed Heavner’s sentence was “required under the law”
    immediately after its thorough analysis of the § 3553(a) factors, we conclude that the
    district court’s statement referred to its analysis of the § 3553(a) factors. At a
    minimum, we merely would be speculating if we held that the district court’s
    statement instead referred to its earlier invocation of the erroneous presumption.
    -3-
    Therefore, we are convinced that Heavner cannot carry his burden of showing
    that he would have received a lesser sentence in the absence of the district court’s
    erroneous presumption. Accordingly, we affirm Heavner’s sentence.
    ______________________________
    -4-
    

Document Info

Docket Number: 06-3325

Citation Numbers: 258 F. App'x 57

Judges: Loken, O'Connor, Gruender

Filed Date: 12/14/2007

Precedential Status: Non-Precedential

Modified Date: 11/5/2024