United States v. Donta Boelter , 806 F.3d 1134 ( 2015 )

United States Court of Appeals
For the Eighth Circuit
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No. 15-1331
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Donta Boelter
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Lincoln
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Submitted: November 16, 2015
Filed: November 30, 2015
[Published]
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Before RILEY, Chief Judge, BEAM and KELLY, Circuit Judges.
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PER CURIAM.
Donta Boelter appeals the 24-month sentence he received following the
revocation of his supervised release. Boelter contends the sentence is substantively
unreasonable because it is greater than necessary to achieve the purposes of 18 U.S.C.
§ 3553(a). Because we conclude Boelter’s sentence was substantively reasonable, we
affirm.1
On January 29, 2010, Boelter pled guilty to one count of retaliating against a
witness, in violation of 18 U.S.C. § 1513(b)(1). Boelter’s calculated Sentencing
Guidelines range was 30–37 months. At his sentencing hearing on September 7,
2011, the district court2 varied downward and sentenced Boelter to a term of time
served,3 followed by a 3-year term of supervised release. Boelter began his
supervised release on September 7, 2011. His term of supervised release was set to
expire on September 6, 2014.
On May 14, 2014, a petition to revoke Boelter’s supervised release was filed.
The petition alleged Boelter had not worked since September 2013, had tested
presumptively positive for the use of marijuana on eight occasions between August
29, 2013, and March 26, 2014, was found at a residence where another individual was
cited for possession of marijuana and drug paraphernalia, and had failed to complete
his 100 hours of community service. During a December 2, 2014, revocation of
supervised release hearing, Boelter admitted to using marijuana on eight occasions
between August 29, 2013, and March 26, 2014. The court granted Boelter’s oral
motion to continue the disposition hearing until March 3, 2015.4
1
We have jurisdiction pursuant to 28 U.S.C. § 1291.
2
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska, presided over Boelter’s September 7, 2011, sentencing hearing and all
hearings regarding revocation of Boelter’s supervised release.
3
Boelter was in custody for 47 days.
4
The record is unclear as to why Boelter requested a continuance.
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On December 7, 2014, Boelter was arrested in Kearney, Nebraska, and charged
with trespassing, disturbing the peace, and possessing marijuana. A second petition
to revoke supervised release was filed on December 10, 2014. The alleged violations
in this petition included his December 7, 2014, arrest, a November 19, 2014, citation
for possession of marijuana and child abuse/neglect, lying to his probation officer
about where he was residing, and failing to notify his probation officer prior to
moving to a new residence.
The March 3, 2015, hearing was rescheduled for January 29, 2015. Because
the state charges remained pending, Boelter did not admit any of the violations
alleged in the second petition. At the court’s request, the government called Boelter’s
Probation Officer, Michelle McNamara, to testify about the December 7 incident in
Kearney. On cross-examination, McNamara also confirmed Boelter successfully
completed community service and substance abuse treatment, but testified Boelter
was unemployed for much of the previous two-year period.
All of Boelter’s alleged violations were Grade C violations. With a criminal
history category I, Boelter’s Sentencing Guidelines range was 3–9 months. The
maximum prison term and maximum term of supervised release that could be
reimposed were each 60 months. The probation office recommended a sentence of
24 months imprisonment with no supervision to follow. Boelter requested a sentence
of one year and a day, with no supervision to follow. The district court initially stated
it was inclined to sentence Boelter to a prison term of 30 months, but ultimately
sentenced Boelter to a prison term of 24 months with no supervision to follow.5
Boelter timely appealed.
5
The judgment notes that “[a]llegations 1, 3, and 4 of the [first] Petition [88]
and the 2nd Petition [100] are dismissed on the motion of the United States.”
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We review the substantive reasonableness of a district court’s sentence on
revocation of supervised release under “the same reasonableness standard that applies
to initial sentencing proceedings.” United States v. Growden, 663 F.3d 982, 984 (8th
Cir. 2011) (quotation omitted). 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) (quotation
omitted). “The district court has wide latitude to weigh the § 3553(a) factors in each
case and assign some factors greater weight than others in determining an appropriate
sentence.” United States v. Bridges, 569 F.3d 374, 379 (8th Cir. 2009).
Boelter concedes the district court considered the appropriate sentencing
factors but contends the court made a clear error in judgment in weighing them.
Boelter argues the district court gave too much weight to the unproved allegations in
the second petition. Boelter asserts the court should have placed greater emphasis on
the positive strides he had made in the prior two years, such as completing substance
abuse treatment and his community service hours.
Although Boelter’s sentence was greater than the advisory Guidelines range
and the sentence he proposed, we conclude it was not substantively unreasonable.
The district court gave appropriate consideration to the 18 U.S.C. § 3553(a) factors,
explaining the upward variance was based on “the seriousness of the offense” and
the need “to promote respect for the law, to provide for just punishment, and to afford
deterrence.” The court considered the applicable Guidelines and specifically noted
that Boelter had received a downward departure to a sentence of time served at his
original sentencing. See USSG §7B1.4, comment (n.4) (“Where the original sentence
was the result of a downward departure . . . that resulted in a sentence below the
guideline range applicable to the defendant’s underlying conduct, an upward
departure may be warranted.”). We conclude the district court acted well within its
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broad discretion in determining that a 24-month term of imprisonment with no
supervision to follow was appropriate.
Accordingly, we affirm the judgment and sentence of the district court.
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