United States v. Clifton Gallion

United States Court of Appeals
For the Eighth Circuit
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No. 18-3402
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Clifton Donte Gallion
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the District of Minnesota
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Submitted: October 14, 2019
Filed: November 15, 2019
[Unpublished]
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Before KELLY, WOLLMAN, and BEAM, Circuit Judges.
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PER CURIAM.
Clifton Gallion pleaded guilty to a single-count indictment charging him and
others with conspiracy to distribute 280 grams or more of a mixture and substance
containing cocaine base. In his plea agreement, he agreed that he was responsible for
at least 840 grams but less than 2.8 kilograms of crack, resulting in a base offense
level of 32. Gallion’s drug use began at the age of nine and he has cognitive
impairments that resulted from a traumatic brain injury incurred at a very young age.
In the plea agreement, the government agreed to recommend a three-level reduction
for acceptance of responsibility so long as Gallion met certain criteria, including that
he commit no further acts inconsistent with acceptance of responsibility. However,
Gallion failed to attend treatment sessions, failed to report to his supervising officers,
and was arrested with crack in his possession during the time following his plea but
prior to sentencing. As a result of these actions, at sentencing, the final Presentence
Investigation Report recommended that Gallion not receive a three-level reduction
for acceptance of responsibility. The resulting Guidelines range was 210-262
months. Gallion asked for 120 months and the government advocated for 210
months. The district court1 varied downward and sentenced Gallion to 160 months’
imprisonment.
On appeal, Gallion argues the resulting sentence was substantively
unreasonable because (1) the district court’s attempt to afford Gallion a “long period
of forced sobriety” was no different at 120 or 210 months, and thus, while not an
insignificant factor, was afforded more weight than it deserved; (2) the court failed
to meaningfully consider the fact and effect of his traumatic brain injury; and (3) the
district court failed to consider a role reduction.
This court reviews the substantive reasonableness of a sentence under a
deferential abuse-of-discretion standard. United States v. O’Connor, 567 F.3d 395,
397 (8th Cir. 2009). In cases such as this where the sentencing court varied
downward from the Guidelines, this court has observed that “it is nearly
inconceivable that the court abused its discretion in not varying downward still
further.” United States v. Lazarski, 560 F.3d 731, 733 (8th Cir. 2009). Reviewing
the record, in light of the district court’s variance and colloquy in support, including
1
The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.
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the court’s weighing of Gallion’s mental health with his criminal conduct, we find no
abuse of the district court’s broad discretion. Accordingly, we affirm.
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