United States v. Joseph Flying Horse

United States Court of Appeals
For the Eighth Circuit
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No. 23-1423
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Joseph R. Flying Horse
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the District of South Dakota - Western
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Submitted: June 6, 2023
Filed: June 9, 2023
[Unpublished]
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Before GRUENDER, SHEPHERD, and STRAS, Circuit Judges.
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PER CURIAM.
Joseph Flying Horse appeals after the district court1 revoked his supervised
release and sentenced him to 4 months in prison and 30 months of supervised release.
1
The Honorable Jeffrey L. Viken, United States District Judge for the District
of South Dakota.
His counsel has moved for leave to withdraw, and has filed a brief challenging the
sentence. Flying Horse has filed several pro se motions challenging his underlying
conviction and seeking the return of property.
As to the argument in counsel’s brief, after careful review of the record, we
conclude that the district court did not abuse its discretion in sentencing Flying Horse,
as it properly considered the 18 U.S.C. § 3553(a) factors; there was no indication that
it overlooked a relevant factor, or committed a clear error of judgment in weighing
relevant factors; and the sentence was below the advisory Guidelines range and the
statutory limit. See 18 U.S.C. § 3583 (maximum revocation prison term is 2 years for
Class D felony; maximum supervised release term is 3 years, less any previous and
current revocation prison terms); United States v. Miller, 557 F.3d 910, 915-18 (8th
Cir. 2009) (substantive reasonableness of revocation sentence is reviewed under
deferential abuse-of-discretion standard); see also United States v. White Face, 383
F.3d 733, 740 (8th Cir. 2004) (district court need not mechanically list every
§ 3553(a) factor when sentencing defendant upon revocation; all that is required is
consideration of relevant matters and some reason for court’s decision).
As to Flying Horse’s pro se arguments, we conclude that he may not challenge
his original conviction or seek the return of property in this proceeding. See Miller,
557 F.3d at 913 (defendant may not challenge validity of his underlying sentence
through collateral attack in supervised release revocation proceeding); see also Fed.
R. Crim. P. 41(g) (providing procedure for seeking return of property).
Accordingly, we grant counsel’s motion to withdraw, deny Flying Horse’s
pending motions, and affirm.
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