United States v. Jesse Redmond

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-1219
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Jesse M. Redmond, *
* [UNPUBLISHED]
Appellant. *
*
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Submitted: November 16, 2009
Filed: November 23, 2009
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Before MELLOY, BEAM, and GRUENDER, Circuit Judges.
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PER CURIAM.
Appellant Jesse M. Redmond initially received a sentence of 21 months’
imprisonment and three years of supervised release for one count of being a felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1). After his release,
Redmond received a violation report for drug usage. Authorities issued a warrant for
his arrest on October 30, 2007, but were unable to locate him until he appeared at a
hospital as the victim of three non-fatal gunshot wounds. Authorities arrested him on
July 16, 2008. Redmond admitted the violation, and after an initial revocation
hearing, the district court sentenced him to two months’ imprisonment and 24 months’
supervised release.
After his next release from prison, Redmond received a second violation report
alleging that he failed to report to his probation officer. Authorities issued a warrant
for his arrest, and after a number of unsuccessful attempts to locate him, arrested
Redmond.
At a second revocation hearing, the government recommended that Redmond
receive 22 months’ imprisonment for the violation, which reflected the prior two-
month sentence he had already served and the statutory maximum of 24 months. See
18 U.S.C. §3583(e)(3) (“[A] defendant whose term is revoked under this paragraph
may not be required to serve on any such revocation . . . more than 2 years in prison
if such offense is a class C or D felony . . . .”). Redmond argued that the sentence was
excessive. He argued specifically that the government-recommended 22-month
sentence was longer than his original 21-month sentence for the underlying criminal
offense, and that the failure to report violation was relatively benign when compared
to other possible supervised release violations. Finally, he emphasized that the
recommended sentencing range was six to twelve months. See U.S. Sentencing
Guidelines Manual (“U.S.S.G.”) § 7B1.4(a) (2008). The district court1 adopted the
government’s recommendation, citing the previous violation; the fact that Redmond
had absconded after the first warrant was issued and again after serving his two-month
sentence; and the fact that there was reasonable suspicion that Redmond had engaged
in unlawful conduct during the interim period.
Redmond appeals his sentence, claiming that the district court abused its
discretion by not adequately considering the sentencing factors listed in 18 U.S.C.
§ 3553(a) and imposing an unreasonable sentence.
1
The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.
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I. Discussion
Section 3553(a) allows for discretion in sentencing, including sentences
following revocation of supervised release. See also, United States v. Larison, 432
F.3d 921, 923 (8th Cir. 2006). We review revocation sentences for substantive
unreasonableness. See United States v. Petreikis, 551 F.3d 822, 824 (8th Cir. 2009);
United States v. Merrival, 521 F.3d 889, 890 (8th Cir. 2008). While broad discretion
exists, a sentence, “may be unreasonable if a sentencing court fails to consider a
relevant factor that should have received significant weight, gives significant weight
to an improper or irrelevant factor, or considers only appropriate factors but
nevertheless commits a clear error of judgment by arriving at a sentence that lies
outside the limited range of choice dictated by the facts of the case.” United States v.
Haack, 403 F.3d 997, 1004 (8th Cir. 2005). In this case, Redmond argues that the
court did not give enough weight to the Guidelines range of six to twelve months’
imprisonment. However, this factor alone is not determinative, as the Guidelines are
“purely advisory” in nature. Larison, 432 F.3d at 922.
The district court considered many different factors in Redmond’s case, as
evidenced by the sentencing transcript. After hearing arguments regarding the
original 21-month sentence, the Guidelines, the two incidents of abscondment, and the
fact that Redmond was only originally located after being identified as the victim of
gun violence, the court found that “[t]wo times is too many” and sentenced him to the
statutory maximum sentence of 22 months. “These discussions demonstrate the
court’s consideration of the relevant statutory factors, and show that the sentence
imposed was a carefully considered exercise of discretion.” United States v. Brown,
203 F.3d 557, 558 (8th Cir. 2000) (per curiam).
Furthermore, in response to Redmond’s claims that his sentence is generally
excessive, the Eighth Circuit has upheld similar above-Guidelines sentences for
violations of supervised release. See, e.g., United States v. Herbeck, 282 F. App’x.
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490, 491-92 (8th Cir. 2008) (per curiam) (holding that defendant’s 36-month, above-
Guidelines but below-statutory-maximum sentence upon revocation of supervised
release was not unreasonable where the district court had discussed both the
Guidelines and other §3553(a) factors during sentencing); Larison, 432 F.3d at 924
(holding that, where the Guidelines recommended five to eleven months’
imprisonment upon revocation of supervised release, a 60-month sentence was not
unreasonable considering defendant’s repeated violations and ongoing criminal
conduct); United States v. Cotton, 399 F.3d 913, 916 (8th Cir. 2005) (holding that
defendant’s 46-month, above-Guidelines sentence upon revocation of supervised
release was not unreasonable, even where the Guidelines recommended a sentence of
only seven to thirteen months); Brown, 203 F.3d at 558 (holding that defendant’s
above-Guidelines but below-statutory-maximum sentence upon revocation of
supervised release was not an abuse of discretion where the court discussed the
relevant statutory factors, and emphasizing that the Guidelines are advisory in nature).
II. Conclusion
We affirm the judgment of the district court.
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