United States v. Abdul Vann , 364 F. App'x 279 ( 2009 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 09-2126
    ___________
    United States of America,               *
    *
    Appellee,                  *
    * Appeal from the United States
    v.                                * District Court for the
    * District of Nebraska.
    Abdul F. Vann,                          *
    * [UNPUBLISHED]
    Appellant.                 *
    ___________
    Submitted: October 19, 2009
    Filed: December 7, 2009
    ___________
    Before COLLOTON, BEAM, and BENTON, Circuit Judges.
    ___________
    PER CURIAM.
    After Abdul Vann admitted a violation of the terms of his supervised release,
    the district court1 revoked his term of supervised release and sentenced him to one
    year and one day in prison. Vann appeals the sentence, and we affirm.
    In 2004, Vann pled guilty to the crime of unlawful possession of a firearm as
    a previously convicted felon, in violation of 18 U.S.C. § 922(g). The court sentenced
    1
    The Honorable Joseph F. Bataillon, United States District Judge for the District
    of Nebraska.
    him to thirty months’ imprisonment, to be followed by three years of supervised
    release. In early January 2009, after thirty months on supervised release, Omaha
    police stopped a vehicle that Vann was driving and discovered an open container of
    alcohol and cocaine residue in the vehicle. Vann pled no contest in state court to
    attempted possession of a controlled substance. He was sentenced to 120 days in jail
    by the Douglas County District Court.
    While the state proceedings were pending, the United States Probation Office
    filed a petition in the district court, alleging that Vann violated his conditions of
    supervised release. At a revocation hearing, Vann admitted his no-contest plea in state
    court on the charge of attempted possession of cocaine, and the district court found
    that Vann’s offense constituted a violation of the terms of his supervised release. The
    statutory sentencing range for this violation was zero to two years’ imprisonment, 18
    U.S.C. § 3583(e)(3), and the advisory sentencing guidelines range was eight to
    fourteen months. USSG § 7B1.4(a). The district court sentenced Vann to one year
    and one day of imprisonment.
    Vann asserts on appeal that the district court imposed an unreasonable sentence.
    Although 18 U.S.C. § 3742(e)(4) provides that the court of appeals should review a
    revocation sentence to determine whether it is “plainly unreasonable,” our court has
    applied the same “unreasonableness” standard to both initial sentencing decisions and
    revocation proceedings after United States v. Booker, 
    543 U.S. 220
    (2005). United
    States v. Bear Robe, 
    521 F.3d 909
    , 910-11 (8th Cir. 2008). We review the district
    court’s selection of a sentence under a deferential abuse-of-discretion standard,
    United States v. Feemster, 
    572 F.3d 455
    , 461 (8th Cir. 2009) (en banc), and we have
    observed that it will be the unusual case, after Gall v. United States, 
    552 U.S. 38
    (2007), in which we reverse a district court’s sentence as substantively unreasonable.
    
    Feemster, 572 F.3d at 464
    . Where, as here, the sentence imposed is within the
    advisory guideline range, we also presume that it is reasonable. United States v.
    -2-
    Boothe, 
    491 F.3d 916
    , 917 (8th Cir. 2007); Rita v. United States, 
    551 U.S. 338
    , 347
    (2007).
    The statute governing revocation of supervised release, 18 U.S.C. § 3583(e)(3),
    provides that a court imposing a revocation sentence must consider several of the
    factors listed in 18 U.S.C. § 3553(a). Vann argues that several of the relevant
    § 3553(a) factors weigh in favor of a more lenient sentence. He suggests that the
    district court overstated the nature and seriousness of his offense, given his
    completion of eighty-three percent of his supervised release term, the non-violent
    character of his drug offense, his ability to maintain employment during his
    supervision term, and his attempts to continue his education. He asserts that his
    history and characteristics are suited to a shorter sentence, because he has “showed
    that he can be, and was, successful outside of incarceration.” (Vann Br. 6). And he
    relies on the short sentence imposed by the State for his recent drug offense as
    evidence that he poses no danger to the public.
    The district court was presented with all of this information, but found it
    unpersuasive. The court was entitled to make a different assessment of the
    seriousness of Vann’s drug offense, to consider Vann’s extensive criminal history
    (which placed him in Category VI at his original sentencing hearing), and to conclude
    that substantial incarceration was warranted to protect the public and deter unlawful
    conduct. The court permissibly concluded that Vann’s attempt to possess cocaine
    while on supervised release for a firearms offense, together with his criminal history,
    outweighed the mitigating factors cited by Vann and justified a sentence within the
    presumptively reasonable guideline range. The court’s evaluation falls within the
    wide range of discretion available to the district court.
    The judgment of the district court is affirmed.
    ______________________________
    -3-