United States v. Bart Kerns ( 2022 )

United States Court of Appeals
For the Eighth Circuit
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No. 21-3572
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Bart Stanley Kerns
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Central
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Submitted: April 14, 2022
Filed: August 1, 2022
[Unpublished]
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Before SMITH, Chief Judge, WOLLMAN and GRASZ, Circuit Judges.
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PER CURIAM.
While on supervised release, Bart Kerns set off a firework that damaged an
Iowa bar. He was charged with criminal mischief in the second degree, but he entered
an Alford1 plea to criminal mischief in the fourth degree. His probation officer filed
1
North Carolina v. Alford, 400 U.S. 25 (1970).
a petition for revocation of his supervised release, which the district court2 granted.
The court determined that Kerns committed a Grade B violation based on the amount
of loss he caused and sentenced him to 24 months’ imprisonment. He appeals his
sentence, arguing that the court erred in its violation-grade determination and that his
sentence was substantively unreasonable. We affirm.
I. Background
Kerns pleaded guilty to one count of being a felon in possession of a firearm
and was sentenced to 37 months’ imprisonment in November 2017. He began his 36-
month term of supervised release in June 2020. He twice violated the terms of his
supervision3 before June 2021 when he committed the instant violation. His probation
officer’s petition to modify his conditions of supervision described the violation as
“New Arrest–2nd Degree Criminal Mischief.” R. Doc. 67, at 1. Kerns waived his right
to a modification hearing and indicated that he “[did] not dispute that [he] ha[s]
violated the conditions of [his] supervision, as outlined in the . . . petition.” Id. at 3.
The petition stated that “Kerns . . . set off an exploding firework which caused
approximately $1[,]500 in damage.” Id. at 1. The district court granted the petition to
modify Kerns’s conditions of supervision in July 2021, and he was thereafter required
to enter a residential reentry program.
In September 2021, Kerns entered an Alford plea to the lesser included charge
of criminal mischief in the fourth degree. The difference between the two offenses is
principally the loss caused by the defendant’s behavior. Criminal mischief in the
2
The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa.
3
In November 2020, Kerns was cited by the Iowa Department of Natural
Resources for illegal taking of a deer using a crossbow. His crossbow was removed
but no modification was made to his release conditions. In January 2021, he tested
positive for cocaine and methamphetamine. He was subjected to increased drug
testing and monitoring and additional substance abuse treatment.
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second degree involves loss exceeding $1,500 but not exceeding $10,000. Iowa Code
§ 716.4(1)(a). Criminal mischief in the fourth degree involves loss exceeding $300
but not exceeding $750. Id. § 716.6(1)(a)(1). After Kerns’s plea, his probation officer
filed a petition to revoke his supervised release, which the district court granted.
At the revocation hearing, the government argued that Kerns committed a
Grade B violation. Grade B violations involve conduct that can result in a sentence
of imprisonment “exceeding one year.” U.S.S.G. § 7B1.1(a)(2). The government
based its argument on Kerns’s agreement to pay $1,500 in restitution, the minimum
amount of loss involved in second-degree criminal mischief. Had he been convicted
of second-degree criminal mischief, he would have been subject to up to five years’
imprisonment. See Iowa Code § 902.9(1)(e). The government submitted the following
as evidence: (1) the state complaint, which alleged that the “[o]ffense [c]ommitted”
was “2nd degree criminal mischief,” R. Doc. 86-1, at 1; (2) a supporting affidavit,
which stated, that “[t]he explosion caused $1,500 [of] damage to The Talk Shop
Lounge,” id. at 2; (3) the plea petition, which stated that he entered an Alford plea to
criminal mischief in the fourth degree and that he agreed to “[p]ay up front $1[,]500
in restitution,” R. Doc. 86-2, at 2; and (4) the judgment conveying the same.
In reply, Kerns argued that he only committed a Grade C violation. Grade C
violations involve conduct that can result in a sentence of imprisonment of one year
or less, or “a violation of any other condition of supervision.” U.S.S.G. § 7B1.1(a)(3).
Kerns relied on his entry of an Alford plea to criminal mischief in the fourth degree
in support of his argument. He could have been punished by no more than one year’s
imprisonment for fourth-degree criminal mischief. Iowa Code § 903.1(1)(b).
Based on the record before it, the district court concluded that Kerns committed
a Grade B violation. Kerns did not object. With a Grade B violation and criminal
history category of V, the court calculated his Guidelines range between 18 to 24
months’ imprisonment. Kerns requested a downward variance to a sentence of 7
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months’ imprisonment. The court declined the request and imposed a term of 24
months’ imprisonment at the high end of the Guidelines range. The court also stated
that it would impose that term “under either [G]uideline[s] calculation”—whether it
determined he committed a Grade B violation or a Grade C violation. R. Doc. 92, at
13. Kerns did not object to the sentence.
II. Discussion
A. Procedural Error
Kerns first challenges the district court’s determination that he committed a
Grade B violation. “We review the district court’s decision to revoke supervised
release for an abuse of discretion and any factual determinations underpinning the
revocation . . . for clear error.” United States v. Daye, 4 F.4th 698, 700 (8th Cir.
2021). “We will find clear error only when we are left ‘with the definite and firm
conviction that a mistake has been committed.’” United States v. Lalley, 257 F.3d
751, 758 (8th Cir. 2001) (quoting United States v. Williams, 605 F.3d 556, 570 (8th
Cir. 2010).
Kerns argues that he did not commit a Grade B violation because the offense
to which he pleaded—criminal mischief in the fourth degree—was a misdemeanor
that carried a maximum term of imprisonment that is shorter than what is required for
classification as a Grade B violation. He argues that the state complaint that the
government entered as an exhibit “d[id] not indicate what was damaged or how the
damage was estimated.” Appellant’s Br. at 9. But “[t]he grade of violation does not
depend upon the conduct that is the subject of criminal charges or of which the
defendant is convicted in a criminal proceeding. Rather, the grade of the violation is
to be based on the defendant’s actual conduct.” U.S.S.G. § 7B1.1 cmt. n.1.
The district court did not clearly err by determining that Kerns committed a
Grade B violation given that he indicated that he did not dispute the allegations in the
modification petition and that he agreed to pay $1,500 in compensation for loss. See
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United States v. Grady, 772 F. App’x 390, 391 (8th Cir. 2019) (unpublished per
curiam) (“[T]he district court did not plainly err in categorizing two of [the
defendant’s] supervised-release violations as Grade A—notwithstanding [his]
assertions to the contrary—in light of his admission at the revocation hearing, which
was supported by the allegations in the probation officer’s petition.”). Based on these
facts, we are not definitely and firmly convinced that the district court committed a
mistake. See Lalley, 257 F.3d at 758.
Kerns also essentially challenges the sufficiency of the evidence by contending
that “the [g]overnment should have called [the law enforcement officer] who
investigated the explosion,” that “the [g]overnment could have provided an exhibit
indicating what was damaged . . . or an estimation on the cost of repair,” and that “the
[g]overnment could have called eyewitnesses to explain what was damaged.”
Appellant’s Br. at 11. The record evidence was sufficient. We hold that the district
court did not clearly err by determining that Kerns committed a Grade B violation.
B. Substantive Reasonableness
Kerns also challenges the substantive reasonableness of the district court’s
sentence. “We review the substantive reasonableness of a revocation sentence under
the abuse-of-discretion standard.” United States v. Beran, 751 F.3d 872, 875 (8th Cir.
2014). “Sentences within the advisory Guidelines range are presumed reasonable,
however. This presumption is rebuttable, but the burden is on a defendant to show his
sentence should have been lower considering the factors enumerated in 18 U.S.C. §
3553(a).” United States v. Herra-Herra, 860 F.3d 1128, 1132 (8th Cir. 2017)
(citations omitted). “A district court abuses its discretion and imposes an
unreasonable sentence when it fails to consider a relevant and significant factor, gives
significant weight to an irrelevant or improper factor, or considers the appropriate
factors but commits a clear error of judgment in weighing those factors.” United
States v. Miner, 544 F.3d 930, 932 (8th Cir. 2008). “A district court does not impose
a substantively unreasonable sentence merely because the district court attributes less
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weight to a defendant’s personal problems.” United States v. Gant, 663 F.3d 1023,
1032 (8th Cir. 2011).
Kerns has not rebutted the presumption that his within-Guidelines-range
sentence is reasonable. See Herra-Herra, 860 F.3d at 1132. He argues that the district
court failed to properly consider whether his sentence was greater than necessary
because he had served his initial 37-month sentence for being a felon in possession
of a firearm. He also notes that the instant supervision violation was the only one
resulting in a conviction. He acknowledged, however, that “[a]fter being released
from his term of incarceration in 2020, [he] has had two . . . [other] violations.”
Appellant’s Br. at 16. Before pronouncing its sentence the court noted Kerns’s “very
poor performance” on supervision and the court’s concern for the respect of the law.
R. Doc. 92, at 13.
Lastly, Kerns argues that the district court failed to properly consider his
history and characteristics—specifically, “his severe mental health issues.”
Appellant’s Br. at 17. His argument fails because the court heard his argument that
“he will be able to more meaningfully engage in mental health treatment under
supervised release,” as opposed to while he is incarcerated. R. Doc. 92, at 9. The
court also inquired whether “he was getting some [medical] attention for [his] mental
health.” Id. at 10. The court considered his mental health issues but chose to accord
them less weight than Kerns would prefer. The court was within its discretion to give
his mental condition the weight it believed the evidence merited. See Gant, 663 F.3d
at 1032. We hold that the district court’s sentence was substantively reasonable.
III. Conclusion
Accordingly, we affirm the district court’s judgment.
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