United States v. Mario Harper ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 18-3079
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Mario Jerel Harper
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: September 23, 2019
Filed: November 1, 2019
[Unpublished]
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Before LOKEN, COLLOTON, and KOBES, Circuit Judges.
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PER CURIAM.
Mario Jerel Harper was convicted of being a prohibited person in possession
of a firearm in violation of 18 U.S.C §§ 922(g)(1), 922(g)(3), and 924(a)(2) and of
unlawful possession of a National Firearms Act firearm in violation of 26 U.S.C.
§§ 5841, 5845(a), 5861(d), and 5871. The Guidelines recommended a sentence of 57
to 71 months in prison and one to three years of supervised release. At sentencing,
the district court1 noted Harper’s poor health and his good conduct on pretrial release
and granted a downward variance to three years of probation.
Almost two years later, the government filed a petition to revoke supervision
because Harper tested positive for methamphetamine four times and cocaine three
times, lied to his probation officer about his drug use four times, and twice tampered
with the sweat patches used to test for drug use. The district court revoked Harper’s
probation and resentenced him to 57 months in prison followed by three years of
supervised release. This was above the Guidelines recommendation of three to nine
months in prison. Harper appeals, arguing that his new sentence is substantively
unreasonable.
We apply an abuse-of-discretion standard to revocation sentences. United
States v. Keatings, 787 F.3d 1197, 1202 (8th Cir. 2015). “[R]eversal on the basis of
substantive unreasonableness is unusual.” Id. at 1203 (citation omitted). Harper
argues that the district court gave undue weight to his violation of the terms of his
probation when it imposed a sentence 48 months above the revocation range. See
United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (explaining
circumstances under which a district court abuses discretion).
We conclude that the district court did not abuse its discretion. The court
explained that it “wanted to give [Harper] a chance” when it gave him three years of
probation and would treat his revocation sentencing “as though this were an original
sentencing and the guideline range were 57 to 71 months.” A district court has
discretion to impose above-Guidelines sentences, particularly where the original
sentence was the result of a downward departure. See United States v. Nelson, 453
1
The Honorable Linda R. Reade, United States District Judge for the
Northern District of Iowa.
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F.3d 1004, 1004 (8th Cir. 2006); see also U.S.S.G. § 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.”). Although the district court sentenced
Harper above his revocation range, that was after he received probation at his initial
sentencing. His new sentence was at the bottom of the original range.
The district court justified the sentence with reference to the § 3553(a) factors,
focusing on Harper’s failed drug tests, lies to his probation officer, and sweat patch
tampering. We have acknowledged that similar repeated violations support increased
sentences at revocation. See United States v. Larison, 432 F.3d 921, 924 (8th Cir.
2006). Furthermore, the court’s review was not one sided. It also considered
favorable factors like Harper’s health and the period of time that he was on probation
without incident. Although the district court “may give some factors [more or] less
weight than a defendant prefers . . . that alone does not justify reversal.” United
States v. Anderson, 618 F.3d 873, 883 (8th Cir. 2010).
We affirm the judgment of the district court.
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