United States v. Gregory Wickman ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-1186
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United States of America
Plaintiff - Appellee
v.
Gregory Scott Wickman
Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota
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Submitted: November 16, 2020
Filed: February 25, 2021
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Before SHEPHERD, STRAS, and KOBES, Circuit Judges.
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SHEPHERD, Circuit Judge.
Gregory Wickman pled guilty to one count of possession of
methamphetamine with the intent to distribute and was sentenced to 192 months
imprisonment—a downward variance from his advisory guidelines range, per the
United States Sentencing Guidelines, of 235-293 months imprisonment. He now
contends that his sentence is substantively unreasonable. Having jurisdiction
pursuant to 28 U.S.C. § 1291, we affirm the district court.1
I.
In 2019, Minnesota law enforcement relied on a confidential informant to
make a controlled purchase of 23 grams of methamphetamine from Wickman. Three
days later, officers conducted a traffic stop of Wickman and seized 238 grams of
methamphetamine, a loaded pistol, and $5,751 in cash. Pursuant to a search warrant,
officers searched Wickman’s house and recovered 230.53 grams of
methamphetamine, 3 loaded guns (1 loaded pistol; 1 loaded handgun; and 1 loaded
revolver), 1 unloaded assault rifle, ammunition, a digital scale, marijuana oil, and
$6,430 in cash. Wickman was arrested and released pending further investigation.
Approximately two weeks after Wickman’s release, officers noticed an idling
vehicle and approached it. Wickman was the driver, and an unloaded assault rifle
was in plain view on the vehicle’s seat. Officers arrested Wickman and, after
searching the vehicle, seized the rifle, a loaded semiautomatic handgun, 4 firearm
magazines, ammunition, 217.96 grams of methamphetamine, and $4,000 in cash.
Upon his arrest, Wickman told the officers that he had received the firearms as
payment for a half pound of methamphetamine.
Wickman pled guilty to one count of possession of methamphetamine with
the intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). At
sentencing, the district court advised that it did not presume that the Guidelines range
is binding but instead had considered all factors outlined in 18 U.S.C. § 3553(a). It
noted that the circumstances of the offense—i.e., the large amount of
methamphetamine, firearms (many of which were loaded), and ammunition—were
quite serious. It further noted that Wickman’s past convictions (and subsequent
sentences) had not deterred him; that, while on supervised release for those past
1
The Honorable Eric C. Tostrud, United States District Judge for the District
of Minnesota.
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convictions, Wickman had violated the terms of his release on multiple occasions;
and that, in the instant case, Wickman was arrested for a second time (on February
5, 2019) only days after his first arrest (on January 25, 2019). The district court did
express sympathy for Wickman, characterizing his life as one that had been “ravaged
by his methamphetamine and other drug addictions” before also noting that, “Mr.
Wickman has been given help and support in this area, including in connection with
earlier more lenient sentences, but that sobriety has eluded him.” R. Doc. 83, at 33.
Ultimately, the district court varied downward from Wickman’s Guidelines range of
235 to 293 months imprisonment and imposed a sentence of 192 months
imprisonment.
II.
Wickman now appeals, arguing that his sentence is substantively
unreasonable. Specifically, he contends that the sentence is longer than necessary
and that sentencing disparities will result. We disagree.
“We review substantive reasonableness for an abuse of discretion, ‘tak[ing]
into account the totality of the circumstances, including the extent of any variance
from the Guidelines range.’” United States v. Anderson, 664 F.3d 758, 764 (8th Cir.
2012) (alteration in original) (citation omitted). “[W]here a district court has
sentenced a defendant below the advisory [G]uidelines range, ‘it is nearly
inconceivable that the court abused its discretion in not varying downward still
further.’” United States v. McKanry, 628 F.3d 1010, 1022 (8th Cir. 2011) (first
alteration in original) (citation omitted); see also United States v. Feemster, 572 F.3d
455, 464 (8th Cir. 2009) (en banc) (“[I]t will be the unusual case when [this Court]
reverse[s] a district court sentence—whether within, above, or below the applicable
Guidelines range—as substantively unreasonable.”). Further, district courts have
“wide latitude” in weighing the § 3553(a) factors and assigning weight to each of
those factors. United States v. Bridges, 569 F.3d 374, 379 (8th Cir. 2009). A
defendant’s dissatisfaction with a district court’s balancing of the § 3553(a) factors
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does not indicate that the district court abused its discretion. United States v. Ruiz-
Salazar, 785 F.3d 1270, 1273 (8th Cir. 2015) (per curiam).
Here, the district court varied downward after engaging in a measured and
thoughtful discussion of the Guidelines and their applicability to Wickman’s offense
and personal circumstances. It expressly noted that the Guidelines range is merely
a “starting point.” R. Doc. 83, at 31. The district court then carefully considered the
applicable § 3553(a) factors and explained that it had fashioned a sentence that is
“sufficient but not greater than necessary.” R. Doc. 83, at 32. In explaining the
sentence, the district court highlighted the quantity of drugs involved; Wickman’s
possession of seven firearms (five of which were loaded); Wickman’s use of those
firearms to further his drug crime; Wickman’s two arrests in a two-week span; and
Wickman’s extensive criminal history, which includes 15 felony convictions
between the ages of 16 to 27. Wickman’s dissatisfaction with the district court’s
balancing of the § 3553(a) factors does not entitle him to a finding that the district
court abused its discretion. Ruiz-Salazar, 785 F.3d at 1273. We conclude that this
is not the rare case where the district court abused its discretion in imposing a below-
Guidelines range sentence. See McKanry, 628 F.3d at 1022.
Wickman also proffers a policy rationale in arguing that the district court
abused its discretion. Specifically, his position is that the Guidelines provisions for
pure methamphetamine, as compared to those for methamphetamine mixtures,
create a sentencing disparity between similarly situated defendants. He contends
that judges for the District of Minnesota have recognized this disparity (and have
sought to alleviate it) by sentencing defendants convicted of possessing pure
methamphetamine similarly to those convicted of possessing methamphetamine
mixtures. Thus, Wickman argues that here the district court erred by not granting a
variance “based on a disagreement with a policy of the sentencing guidelines.”
Appellant Br. 11. However, it is not our “proper appellate role” to compel a district
court to diverge from the Guidelines in accordance with a defendant’s proffered
policy reasons. See United States v. Heim, 941 F.3d 338, 340-41 (8th Cir. 2019)
(“We have consistently held that, ‘while a district court may choose to deviate from
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the [G]uidelines because of a policy disagreement,’ it is ‘not required to do so.’”
(citation omitted)). Therefore, finding no abuse of discretion, we conclude that
Wickman’s 192-month sentence was substantively reasonable.
III.
For the reasons stated above, we affirm the district court.
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