United States v. Fabian Taylor, Jr.

United States Court of Appeals
For the Eighth Circuit
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No. 16-1599
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Fabian Taylor, Jr.
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: January 9, 2017
Filed: May 2, 2017
[Published]
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Before SMITH,1 GRUENDER, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Fabian Taylor, Jr., pleaded guilty to possessing a gun while a felon and was
sentenced to 96 months’ imprisonment. This sentence reflects a 25-month upward
1
The Honorable Lavenski R. Smith became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on March 11, 2017.
departure from Taylor’s initial Guidelines range. The district court2 enhanced the
sentence to reflect Taylor’s understated criminal history and his recidivism risk.
Taylor appeals this departure and the substantive reasonableness of his sentence. We
affirm.
In July 2014, Taylor shot a .357 Ruger revolver toward people he believed had
assaulted him a few days earlier. As a felon, Taylor could not lawfully possess this
firearm. After he pleaded guilty to possessing it, the district court calculated his
Guidelines sentencing range as 57–71 months’ imprisonment. The government asked
the court to depart upward by one criminal history category under U.S.S.G. § 4A1.3
and four offense levels under § 5K2.21, which together would increase Taylor’s range
to 100–120 months’ imprisonment. The court departed upward under § 4A1.3(a)(1)
by two criminal history categories, which put Taylor’s range at 77–96 months’
imprisonment.
Section 4A1.3(a)(1) authorizes an upward departure if “reliable information
indicates that the defendant’s criminal history category substantially under-represents
the seriousness of the defendant’s criminal history or the likelihood that the defendant
will commit other crimes.” The district court based its departure on both grounds.
First, Taylor accumulated 20 convictions in the 12 preceding years. (He was 28 years
old at sentencing.) Five of these offenses were committed while other charges were
pending. Second, the court noted a pattern of escalating violent behavior and poor
performance while on supervision. It also noted Taylor’s firearm use in the instant
offense. It based the departure “mostly . . . on the inadequacy of the criminal history
category to reflect his true criminal behavior and high risk to recidivate.” The court
then sentenced Taylor at the high end of the new range: 96 months. In applying the
18 U.S.C. § 3553(a) sentencing factors, the court again noted Taylor’s extensive
2
The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
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criminal history, gun use, driving under the influence, burglaries, and “assaultive
behavior.”
We review an upward departure under § 4A1.3 for abuse of discretion. United
States v. Jones, 596 F.3d 881, 883 (8th Cir. 2010). Taylor contends that his prior
convictions were too inconsequential to warrant an upward departure. He
characterizes them as “nothing more than minor infractions of the law.” Although he
mostly received light sentences, many of the offenses were serious. In 2005, at
age 17, he burgled a woman’s home. In 2009, at age 21, he assaulted a sheriff’s
deputy. The next year he committed another assault. The year after that he struck
another person in the mouth with his fist. He acquired a disorderly conduct conviction
for fighting just over a year later. And within a year of that offense he drove a vehicle
while intoxicated. In July 2014 he committed the instant offense by possessing the
.357 Ruger. These offenses were interspersed with others: drug possession, public
intoxication, providing false identification, and driving with a suspended license.
Many of these interspersed convictions and the one for disorderly conduct received
no criminal history points.
The district court did not abuse its discretion by departing upward to accurately
reflect Taylor’s criminal history and his likelihood of committing more crimes. Even
minor crimes may show a likelihood of recidivism if they portray a defendant who is
particularly incorrigible. United States v. Schwalk, 412 F.3d 929, 934 (8th Cir. 2005).
Because Taylor’s crimes were not all minor and together show a likelihood of further
crime, departing upward under § 4A1.3(a)(1) was within the court’s discretion.
Taylor also contends that his sentence is substantively unreasonable. He argues
that a sentence at the bottom of the initial Guidelines range (57 months) would be
sufficient to serve the sentencing goals, considering his limited history of substance
abuse, his influence on his family, and his positive employment history. The record
reflects that the district court reviewed the evidence fully aware of the applicable
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sentencing factors. It had “wide latitude to weigh the § 3553(a) factors . . . and assign
some factors greater weight than others in determining an appropriate sentence.”
United States v. Lasley, 832 F.3d 910, 914 (8th Cir. 2016) (quoting United States v.
Maxwell, 664 F.3d 240, 247 (8th Cir. 2011)). And it did not abuse that discretion
here.
Accordingly, we affirm.
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