United States v. Benjamin Clarkson , 321 F. App'x 534 ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-2191
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Eastern District of Missouri.
*
Benjamin T. Clarkson, * [UNPUBLISHED]
*
Appellant. ___________
*
Submitted: December 8, 2008
Filed: April 14, 2009
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Before LOKEN, Chief Judge, BEAM and ARNOLD, Circuit Judges.
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PER CURIAM.
Benjamin Clarkson appeals his sentence after pleading guilty to two charges
involving his attempts to manufacture methamphetamine on several occasions. The
district court1 sentenced Clarkson to concurrent terms of 188 months' imprisonment,
followed by four years of supervised release.2 On appeal, Clarkson challenges the
process by which his indictment was returned. He further contends the district court
failed to properly consider the sentencing factors set forth in 18 U.S.C. § 3553(a), and
1
The Honorable Catherine D. Perry, United States District Judge for the Eastern
District of Missouri.
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The district court also imposed a special assessment of $100 on each count.
abused its discretion by imposing an unreasonable sentence. Finding no reversible
error, we affirm.
We first address Clarkson's argument regarding the indictment process. At
Clarkson's request, his appellate counsel raised the issue of whether his indictment
was returned in violation of Federal Rule of Criminal Procedure 6(f), but opined that
the issue was meritless. Clarkson then filed a motion to present argument pro se,
arguing the district court lacked jurisdiction because the record did not clearly indicate
his indictment was returned "in open court" as required by Rule 6(f). We usually do
not consider pro se arguments when litigants are represented by counsel. United
States v. Peck, 161 F.3d 1171, 1175 n.2 (8th Cir. 1998). We therefore deny his
motion. Moreover, we note that Clarkson would not be entitled to relief on this
ground in any event because he waived the issue by pleading guilty to two counts in
the indictment. See United States v. Taylor, 519 F.3d 832, 836 (8th Cir. 2008) (noting
that "[a] guilty plea waives all non-jurisdictional defenses," unless, with the consent
of the court and the government, the plea is expressly conditioned on the right to
appeal the denial of a specified pre-trial motion); see also United States v. Cotton, 535
U.S. 625, 631 (2002) (concluding that a defective indictment does not deprive a court
of jurisdiction); United States v. Kahlon, 38 F.3d 467, 469 (9th Cir. 1994) (noting that
the failure to return an indictment in open court as required by Rule 6(f) is merely a
non-jurisdictional, procedural defect).
We turn to Clarkson's sentencing arguments. We review the sentence for
reasonableness, first ensuring the district court did not commit a significant procedural
error. United States v. Kowal, 527 F.3d 741, 747 (8th Cir.), cert. denied, 129 S. Ct.
612 (2008). If the district court's decision is procedurally sound, we then review the
sentence for substantive reasonableness, applying an abuse-of-discretion standard. Id.
Where the sentence imposed falls within the advisory Guidelines range, "we accord
it a presumption of reasonableness." United States v. Zastrow, 534 F.3d 854, 856 (8th
Cir. 2008) (quotation omitted).
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Applying those standards, we first conclude that no procedural error occurred.
Significant procedural errors include "'miscalculating the Guidelines range, treating
the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately explain why a
sentence was chosen.'" Id. at 855 (quoting United States v. Braggs, 511 F.3d 808, 812
(8th Cir. 2008)). We find no such infirmities here. To the extent Clarkson suggests
the district court merely mentioned the relevant § 3553(a) factors in passing and did
not properly explain the chosen sentence, we disagree. To the contrary, the district
court made a clear record of the relevant factors, discussed each in terms specific to
Clarkson's case, and explained in detail why those considerations supported the
chosen sentence. Thus, the decision is procedurally sound.
We further conclude Clarkson's 188-month sentence, which was at the bottom
of his advisory Guidelines range and is presumed reasonable on appeal, is not an
abuse of discretion. A sentencing court abuses its discretion if it "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." Kowal, 527 F.3d at 749
(quotation omitted). Here, Clarkson contends the district court failed to fully consider
the § 3553(a) factors, and focused instead on an improper or irrelevant factor: his
failure to fully accept responsibility for his offense. The argument is without merit.
As noted above, the district court engaged in a lengthy and detailed discussion of the
relevant § 3553(a) factors. The district court also granted Clarkson a three-level
reduction in his offense level for acceptance of responsibility, and only made some
additional comments on that subject in response to Clarkson's statements at
sentencing. And in any event, we have held that a defendant's acceptance of
responsibility is a relevant and proper consideration under § 3553(a). United States
v. Jimenez-Gutierrez, 491 F.3d 923, 927 (8th Cir. 2007). Similarly unconvincing is
Clarkson's assertion that his sentence is unreasonable because the district court failed
to consider certain mitigating factors supporting a more lenient sentence, such as the
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letters of support submitted on his behalf. The record reveals that the district court did
consider the letters and also explicitly identified numerous other mitigating and
aggravating factors relevant under § 3553(a). Moreover, our review of the record
indicates the court carefully and properly balanced all of those competing concerns
before arriving at the chosen sentence. We therefore affirm Clarkson's sentence as a
reasonable exercise of the district court's considerable sentencing discretion.
Accordingly, the decision of the district court is affirmed.
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