United States v. Kirk Flying Horse ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-2832
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Kirk Flying Horse
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the District of South Dakota - Northern
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Submitted: June 18, 2021
Filed: July 20, 2021
[Published]
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Before LOKEN, KELLY, and ERICKSON, Circuit Judges.
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PER CURIAM.
In 2015, Kirk Flying Horse pleaded guilty to assaulting, resisting, and
impeding a federal officer. See 18 U.S.C. § 111(a), (b). The district court1 sentenced
him to 30 months’ imprisonment and a three-year term of supervised release. Flying
Horse completed his initial term of imprisonment but has struggled to comply with
the conditions of his supervised release because of his alcohol addiction.
Flying Horse began serving his first term of supervised release on November 1,
2017. The district court revoked his supervised release on June 24, 2019, after Flying
Horse admitted to consuming alcoholic beverages, possessing marijuana, and failing
to attend cognitive behavioral treatment. The court sentenced him to seven months’
imprisonment and a 29-month term of supervised release.
The new term of supervised release began on September 16, 2019. Nine
months into that term, Flying Horse’s probation officer petitioned the district court
to again revoke his supervised release because of a series of alleged violations. On
August 17, 2020, Flying Horse admitted to consuming alcohol and using marijuana
and methamphetamine, and the district court revoked his supervised release. The
advisory Guidelines range for the revocation sentence was 6 to 12 months’
imprisonment. See U.S. SENT’G COMM’N, Guidelines Manual, § 7B1.4 (2018). But
the district court imposed the statutory maximum of 24 months’ imprisonment, see
18 U.S.C. § 3583(e)(3), with no term of supervised release to follow. Flying Horse
appeals, asserting that this sentence was substantively unreasonable.
We review the substantive reasonableness of a district court’s revocation
sentence under the same abuse of discretion standard that applies to initial sentencing
proceedings. See United States v. Growden, 663 F.3d 982, 984 (8th Cir. 2011). A
district court abuses its discretion if it “fails to consider a relevant factor that should
1
The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
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have received significant weight, gives significant weight to an improper or irrelevant
factor, or considers only the appropriate factors but commits a clear error of judgment
in weighing those factors.” United States v. Staten, 990 F.3d 631, 636 (8th Cir. 2021)
(per curiam) (quoting United States v. Petersen, 848 F.3d 1153, 1157 (8th Cir. 2017)).
The district court properly consulted the 18 U.S.C. § 3553(a) factors and
considered Flying Horse’s struggle with alcohol addiction in selecting the sentence
imposed. Although Flying Horse requested placement in a treatment facility instead
of prison, the district court determined that his repeated supervised release violations
warranted a custodial sentence. The court expressed particular concern about the
physical danger Flying Horse had posed to others, including law enforcement
officers, while intoxicated. And although the court acknowledged the obstacles to
obtaining addiction treatment during the pandemic, it was less sympathetic to Flying
Horse’s failure to successfully complete any treatment program in the preceding 20
years. While Flying Horse’s case presents mitigating circumstances, including his
documented decades-long struggle with alcohol, the district court did not abuse its
discretion in selecting the sentence imposed.
For these reasons, we affirm the district court’s judgment.
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