United States v. Daniel J. Richardson, Jr. ( 2020 )

United States Court of Appeals
For the Eighth Circuit
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No. 19-2272
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United States of America
Plaintiff - Appellee
v.
Daniel J. Richardson, Jr.
Defendant - Appellant
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Appeal from United States District Court
for the District of South Dakota - Rapid City
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Submitted: April 15, 2020
Filed: September 3, 2020
[Unpublished]
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Before KELLY, WOLLMAN, and STRAS, Circuit Judges.
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PER CURIAM.
Daniel Richardson, Jr., who pleaded guilty to possessing unregistered firearm
silencers, see 26 U.S.C. §§ 5845(a)(7), 5861(d), 5871, received a 60-month prison
sentence. He argues that the district court 1 did not do a good enough job explaining
1
The Honorable Karen E. Schreier, United States District Judge for the
District of South Dakota.
why it gave him a sentence above the recommended range of 18 to 24 months. He
also claims that the sentence is substantively unreasonable. We affirm.
Richardson donated money to Red Cloud Indian School. He later learned,
however, that it was run by the Jesuits. This development apparently upset him so
much that he made a threatening YouTube video, which showed him holding a large,
machete-like knife to the throat of a stuffed frog, and then sent it to one of the
school’s administrators. He declared that he was “coming up to clean house” and
that he “[had] a sword” for anyone who “want[ed] to be a Jesuit.”
Justifiably alarmed, school administrators notified law enforcement, which
discovered more YouTube videos. In one, Richardson said that he had “plenty of
weapons in [his] truck” and that he “does things this way, public and messy,
[because] it’s the only way [he] can.”
His threats were more than just idle talk. He traveled approximately 1,000
miles from his home in Tennessee to South Dakota to visit the school. He packed
his truck with a machete, a handgun, and a 5-foot-long Samurai sword. When he
arrived at the school, an administrator went out to the parking lot to confront him,
but soon saw his collection of weapons. Fortunately, an officer arrived on the scene
and took him into custody. But a later search of his trailer, which he had parked at
a South Dakota campsite, revealed that he also had two other handguns with
unregistered silencers.
The government charged Richardson with several crimes, but he eventually
pleaded guilty to possessing unregistered firearm silencers, see 26 U.S.C.
§§ 5845(a)(7), 5861(d), 5871, in exchange for the dismissal of the remaining
charges. The district court imposed a 60-month prison sentence, well above the 18
to 24 months recommended by the Sentencing Guidelines, through two alternative
paths. One was an upward variance resting on the court’s overall assessment of the
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statutory sentencing factors. See 18 U.S.C. § 3553(a). The other was an upward
departure “based on conduct . . . underlying” the dismissed charges. U.S.S.G.
§ 5K2.21.
Richardson’s primary argument is that the district court did not adequately
explain either path, particularly in light of the possibility that the videos contained
protected speech. 2 During sentencing, the court mentioned the videos, but
emphasized one in which he said that he was coming to South Dakota to “light up
this candle.” For us to have enough for “meaningful appellate review,” Gall v.
United States, 552 U.S. 38, 50 (2007), Richardson suggests that the district court
needed to do more than just say that statements like this one were true “threats.”
But the district court did say more—much more. In particular, it connected
Richardson’s statements to his conduct. It noted, for example, that the school
administrator who first encountered him that day would have “see[n] [the]
firearm . . . as a threat” after viewing “the YouTube video clips.” The district court
discussed a number of other facts too, including the large number of weapons he had
and a post-arrest call he made to his wife telling “her not to respond and not to
cooperate with law enforcement.” In short, this explanation was more than sufficient
to show that the court fully considered the statutory sentencing factors before
varying upward, especially because the court was not required to “respond to every
argument.” United States v. Black, 670 F.3d 877, 881–82 (8th Cir. 2012); see also
2
To the extent Richardson claims that the district court erred by considering
the videos at all, he has two hurdles to overcome. He must both convince us that
the videos were protected speech and that the court could not consider them if they
were. Cf. Dawson v. Delaware, 503 U.S. 159, 165 (1992) (“[T]he Constitution does
not erect a per se barrier to the admission of evidence concerning one’s beliefs and
associations at sentencing simply because those beliefs and associations are
protected by the First Amendment.”). His briefs at least mention the first point, but
they completely miss the second. In short, he has not done enough to meaningfully
bring this issue before us on appeal. See Waters v. Madson, 921 F.3d 725, 744 (8th
Cir. 2019); Cox v. Mortg. Elec. Registration Sys., Inc., 685 F.3d 663, 674 (8th Cir.
2012).
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United States v. Timberlake, 679 F.3d 1008, 1011–12 (8th Cir. 2012) (holding that
any error in failing to adequately explain an upward departure was harmless because
the court gave a sufficient explanation for an upward variance).
The sentence is also substantively reasonable. See United States v. Feemster,
572 F.3d 455, 461–62 (8th Cir. 2009) (en banc) (applying an abuse-of-discretion
standard). The district court considered the statutory sentencing factors, as
explained above, and determined that an upward variance was necessary to protect
the public and to deter future criminal conduct. Although Richardson believes that
the court should have given less attention to some factors (like his threatening and
erratic behavior) and more to others (like his advanced age and lack of a criminal
history), there is nothing to suggest that it exceeded its “wide latitude” in this area.
United States v. Abrica-Sanchez, 808 F.3d 330, 335 (8th Cir. 2015) (quotation marks
omitted).
We accordingly affirm the judgment of the district court.
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