United States v. Barry Skog

United States Court of Appeals
For the Eighth Circuit
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No. 19-2586
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Barry Ron Skog
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the District of Minnesota
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Submitted: April 14, 2020
Filed: July 20, 2020
[Unpublished]
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Before LOKEN, SHEPHERD, and ERICKSON, Circuit Judges.
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PER CURIAM.
Barry Ron Skog pled guilty pursuant to a plea agreement to one count of sale
of counterfeit coins, in violation of 18 U.S.C. § 485, and one count of mail fraud, in
violation of 18 U.S.C. § 1341. The district court1 sentenced Skog to 30 months
imprisonment to be followed by three years of supervised release. No fine was
imposed but restitution in the amount of $40,610.29 was ordered. Skog appeals,
asserting that the sentence is substantively unreasonable. Having jurisdiction under
28 U.S.C. § 1291, we affirm.
In 2003, Skog, a life-long rare coin enthusiast, opened a business in Burnsville,
Minnesota, which engaged in the sale of rare coins. Skog utilized the United States
Postal Service to mail inventory lists to prospective customers and to mail coins
purchased by customers. In 2006, the Better Business Bureau and local police began
receiving complaints that Skog was selling counterfeit coins. In 2010, Skog was sued
in federal court by Professional Coin Grading Service (PCGS), a manufacturer of
tamper-proof plastic coin holders which are used in the industry to verify coins as
authentic, for using imitation PCGS coin holders to defraud customers with
counterfeit coins. Skog was enjoined from selling counterfeit coins or using real or
imitation PCGS holders. Nevertheless, from 2012 to 2015, Skog sold counterfeit
coins using the United States Postal Service. When law enforcement officers
executed a search warrant for Skog’s home, they found hundreds of counterfeit coins
along with genuine PCGS coin holders. Two-hundred-and-seventy-five of the coins
had been advertised as genuine in lists mailed to customers. If genuine, the coins
would have been worth hundreds of thousands of dollars.
The district court found Skog’s United States Sentencing Guidelines range to
be 33 to 41 months. Skog requested that the district court vary downward and impose
a sentence of one month imprisonment. The United States sought a sentence within
the Guidelines range. The district court varied downward and imposed a sentence of
1
The Honorable Wilhelmina M. Wright, United States District Judge for the
District of Minnesota.
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30 months imprisonment. Skog asserts that the below-Guidelines range sentence is
substantively unreasonable.
We review the substantive reasonableness of a sentence for abuse of discretion.
United States v. Smith, 795 F.3d 868, 872 (8th Cir. 2015) (per curiam). “A sentence
is substantively unreasonable if the district 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 the appropriate factors but commits a clear error
of judgment in weighing those factors.” United States v. Lozoya, 623 F.3d 624, 626
(8th Cir. 2010) (internal quotation marks omitted). “[I]t is nearly inconceivable that
a sentence is so high as to be substantively unreasonable and constitute an abuse of
discretion when the district court imposed a below-Guidelines sentence[.]” United
States v. Bevins, 848 F.3d 835, 841 (8th Cir. 2017) (internal quotation marks
omitted).
Skog does not argue that the district court considered improper or irrelevant
factors or failed to consider a relevant factor. Instead, he contends that the district
court gave too much weight to factors such as deterrence, Skog’s criminal history,
and the need to protect the public, and not enough weight to Skog’s age (64 years old
at sentencing), his poor health, his remorse, the prospects for Skog to make restitution
to his victims if not imprisoned, and his mental and emotional state which led to his
committing these crimes. However, “[w]here the district court in imposing a sentence
makes ‘an individualized assessment based on the facts presented,’ addressing the
defendant’s proffered information in its consideration of the § 3553(a) factors, such
sentence is not unreasonable.” United States v. Stults, 575 F.3d 834, 849 (8th Cir.
2009) (quoting Gall v. United States, 552 U.S. 38, 50 (2007)). “While the district
court clearly ‘assign[ed] . . . greater weight’ to [some factors] than it did to other
factors, under § 3553(a), it had ‘wide latitude’ to do so.” United States v. Wisecarver,
911 F.3d 554, 558 (8th Cir. 2018) (first and second alterations in original) (quoting
United States v. Maxwell, 664 F.3d 240, 247 (8th Cir. 2011)). The district court does
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not abuse its discretion simply because it weighs the relevant § 3553(a) factors
differently than the defendant thinks appropriate. See United States v. Farmer, 647
F.3d 1175, 1179 (8th Cir. 2011).
At sentencing the district court heard and expressly considered Skog’s
argument concerning various mitigating factors, including his age and health; his past
mental and emotional condition which he contends led to his criminal acts; his
willingness and ability to make restitution, and that prospects for restitution will be
jeopardized if Skog is imprisoned; his responsibilities in caring for his elderly
mother; and, that his criminal history is exaggerated. The district court expressly
explained that the sentence was tailored to reflect that Skog has “more to offer this
community.” And, no fine was imposed in order to assist Skog in making restitution.
The court also acknowledged Skog’s past hardships but found that they did not
excuse his criminal acts. The court highlighted the fact that Skog deceived innocent
victims for years costing those victims thousands of dollars and noted that Skog
showed blatant disrespect for the law by defying a federal court injunction by
continuing to sell counterfeit coins ostensibly authenticated by PCGS.
Because the defendant “must show more than the fact that the district court
disagreed with his view of what weight ought to be accorded certain sentencing
factors,” United States v. Townsend, 617 F.3d 991, 995 (8th Cir. 2010) (per curiam),
we find that the district court did not abuse its discretion imposing the below-
Guidelines range sentence in this case.
We affirm the judgment of the district court.
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