United States v. Linden Schuster , 447 F. App'x 750 ( 2011 )


Menu:
  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    __________
    No. 11-1640
    __________
    United States of America,               *
    *
    Appellee,                  *
    * Appeal from the United States
    v.                                * District Court for the
    * Western District of Missouri.
    Linden James Schuster,                  *
    * [UNPUBLISHED]
    Appellant.                 *
    ___________
    Submitted: September 23, 2011
    Filed: October 20, 2011
    ___________
    Before MELLOY, SMITH and BENTON, Circuit Judges.
    ___________
    PER CURIAM.
    Linden James Schuster pled guilty to escape in violation of 
    18 U.S.C. §751
    (a).
    The district court1 sentenced him to 40 months’ imprisonment and three years’
    supervised release. He appeals the sentence as procedurally erroneous. Having
    jurisdiction under 
    28 U.S.C. § 1291
    , this court affirms.
    1
    The Honorable Dean Whipple, United States District Judge for the Western
    District of Missouri.
    While in a halfway house, Schuster signed out to attend a job fair and seek a
    job. He failed to return as scheduled. He went to a friend’s house, eventually stealing
    his car. A week later, Schuster was arrested and charged with escape (the friend
    declined to press charges for auto theft).
    At sentencing, Schuster initially objected to some facts in the presentence
    investigation (PSR) but withdrew his objection. He agreed that the guideline range
    was 27 to 33 months. The government sought an upward “departure from the
    guideline range” to 60 months based on his multiple escapes or walk-aways, parole
    violations, the circumstances of the offense, and his extensive criminal history (he has
    been incarcerated for 23 of the last 27 years). The district court stated it was going
    to “depart” from the guidelines, but imposed a variance (as both parties acknowledge
    on appeal). Schuster has not, at sentencing or on appeal, objected to the sentence as
    a “departure.”
    At sentencing, Schuster first argued he had not “escaped” but rather
    “absconded” from custody and supervision several times, although he later admitted
    this may be “semantics” (state versus federal terminology). He stated that a within-
    guidelines sentence was more than sufficient to accomplish the sentencing goals. The
    district court considered the PSR and sentenced him to 40 months.
    Schuster asserts procedural error alleging that the court failed to consider the
    § 3553(a) factors or to explain why the sentence was “sufficient, but not greater than
    necessary” to achieve the goals of sentencing. See Kimbrough v. United States, 
    552 U.S. 85
    , 101 (2007). Review is for plain error because he did not raise this
    procedural error at sentencing. United States v. Mees, 
    640 F.3d 849
    , 854 (8th Cir.
    2011). He must show an error, that was plain, and that affected his substantial rights.
    
    Id.
     The error will only be corrected if it seriously affects the fairness, integrity, or
    public reputation of judicial proceedings. United States v. Miller, 
    557 F.3d 910
    , 916
    (8th Cir. 2009).
    - 2-
    Throughout the sentencing hearings – which included a two-month continuance
    for defense counsel to clarify the PSR about Schuster’s past threats to law
    enforcement and other prisoners – the district court thoroughly discussed the PSR
    with Schuster. The court also discussed Schuster’s numerous walk-aways and
    abscondings. In his brief, Schuster argues the court failed to acknowledge the
    government erroneously stated he had “multiple escapes.” He tries to transform this
    argument into a failure to consider a significant factor under § 3553(a). This
    argument ignores the lengthy discussions about Schuster’s walk-aways and
    abscondings. The district court considered the underlying facts, and Schuster made
    it clear that he had no convictions for escape (but had a history of absconding, walk-
    aways, and parole violations).
    Finally, when imposing sentence, the court stated that it had considered the §
    3553(a) factors, particularly Schuster’s “extensive criminal history record” and “lack
    of success on supervised release.” Sentencing courts are not required to mechanically
    recite the § 3553(a) factors. United States v. Brown, 
    627 F.3d 1068
    , 1074 (8th Cir.
    2010). At sentencing, the court discussed Schuster’s pending state cases, previous
    parole violations, and extensive but varied criminal history. These discussions
    sufficiently explain the variance from the guidelines. See United States v. Mangum,
    
    625 F.3d 466
    , 469 (8th Cir. 2010).
    Schuster contends that due to procedural errors, the sentence cannot be
    reviewed for reasonableness. Here, there is no procedural error, and the sentence is
    affirmed under deferential abuse-of-discretion review.
    ********
    The judgment of the district court is affirmed.
    _____________________________
    - 3-
    

Document Info

Docket Number: 11-1640

Citation Numbers: 447 F. App'x 750

Judges: Benton, Melloy, Per Curiam, Smith

Filed Date: 10/20/2011

Precedential Status: Non-Precedential

Modified Date: 8/5/2023