United States v. Denny Goines, Jr. , 430 F. App'x 552 ( 2011 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-3314
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Arkansas.
Denny Eugene Goines, Jr., *
* [UNPUBLISHED]
Appellant. *
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Submitted: June 13, 2011
Filed: June 21, 2011
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Before RILEY, Chief Judge, BYE and MELLOY, Circuit Judges.
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PER CURIAM.
Denny Eugene Goines, Jr., pleaded guilty to one count of coercion and
enticement of a minor, in violation of 18 U.S.C. § 2422(b), and the resulting charge
of a supervised release violation related to his 2003 case for possession of child
pornography. The district court1 sentenced him to 180 months on the new charge and
a consecutive term of 18 months on the supervised release violation, to be followed
by lifetime supervised release. In sentencing Goines on the new charge, the court
varied upward from the sentencing range of 120 to 125 months calculated pursuant
1
The Honorable Robert T. Dawson, United States District Judge for the Western
District of Arkansas.
to the United States Sentencing Guidelines based on his offense level of 27 and
criminal history category of IV. Goines argues his sentence on the principal
conviction was unreasonable. Finding no error, we affirm.
Because Goines did not object to any procedural irregularities at sentencing, our
review of the procedural aspects of the sentence is for plain error. United States v.
Miller, 557 F.3d 910, 916 (8th Cir. 2009). Accordingly, Goines must show an error
that is plain, that affects his substantial rights, and that seriously affects the fairness,
integrity, or public reputation of judicial proceedings. United States v. Williams, 624
F.3d 889, 897 (8th Cir. 2010). Goines argues the district court committed procedural
error by concluding he was ineligible for the departure under the Guidelines yet
imposing an upward variance. Because we have previously rejected similar
challenges as harmless errors, see, e.g., United States v. Mireles, 617 F.3d 1009 (8th
Cir. 2010) (finding no plain error where the district court did not analyze the
possibility of a departure from the Guidelines range and opted in favor of imposing
an upward variance instead); United States v. Maurstad, 454 F.3d 787, 790 (8th Cir.
2006) (concluding that the district court’s “failure to explicitly consider a departure
under the Guidelines represents clear but harmless error”); United States v. Long
Soldier, 431 F.3d 1120, 1122-23 (8th Cir. 2005) (stating the district court committed
a harmless error by thinking it could not depart upward post-Booker and imposing an
upward variance instead), we find Goines’s argument concerning the procedural
unreasonableness of his sentence to be without merit.
Turning to the substantive challenge to Goines’s sentence, we engage in the
deferential abuse-of-discretion standard, even though Goines did not object at
sentencing. United States v. Deegan, 605 F.3d 625, 629 (8th Cir. 2010). “A district
court abuses its discretion when it (1) fails to consider a relevant factor that should
have received significant weight; (2) gives significant weight to an improper or
irrelevant factor; or (3) considers only the appropriate factors but in weighing those
factors commits a clear error of judgment.” United States v. Feemster, 572 F.3d 455,
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461 (8th Cir. 2009) (en banc) (internal quotation marks and citation omitted). “Where
[a] district court in imposing a sentence makes an individualized assessment based on
the facts presented, addressing the defendant’s proffered information in its
consideration of the § 3553(a) factors, such sentence is not unreasonable.” United
States v. Mangum, 625 F.3d 466, 469-70 (8th Cir. 2010) (internal quotation marks and
citation omitted).
A careful reading of the sentencing transcript indicates the district court
assessed the individual facts of Goines’s case in imposing the ultimate sentence. The
court began by reciting the relevant § 3553(a) factors. The court was concerned – as
it should have been – about the escalating gravity of Goines’s misconduct and about
his consistent sexual interest toward minors reflected in his criminal history.
See Maurstad, 454 F.3d at 790 (relying on the escalating nature of the defendant’s
offenses in upholding the sentence as reasonable); United States v. Carey, 898 F.2d
642, 646 (8th Cir. 1990) (endorsing reliance on the similarities in the defendant’s
offenses as justification for the upward departure). The court properly emphasized
Goines had previously violated the terms of his supervised release and was on
supervised release at the time of the present offense. See United States v. Larison,
432 F.3d 921, 924 (8th Cir. 2006) (finding the sentence reasonable based, in part, on
the defendant’s repeated supervised release violations). Finally, the court perceived
the previous sentences had not been effective, and a lengthier sentence was required
to achieve the objectives of § 3553(a). See United States v. Gonzalez, 573 F.3d 600,
607 (8th Cir. 2009) (concluding, based on the number of the defendant’s prior
offenses, that an upward departure was appropriate). Given our extremely limited role
in assessing the substance of Goines’s sentence, we affirm the upward variance, even
though it represents a fifty-percent increase compared to the upper limit of the
Guidelines range. See United States v. Clay, 579 F.3d 919, 934 (8th Cir. 2009)
(rejecting a substantive unreasonableness challenge to a sentence that was 615 percent
above the high end of the defendant’s Guidelines range); see also Gall v. United
States, 552 U.S. 38, 47 (2007) (rejecting a “rigid mathematical formula that uses the
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percentage of a departure as the standard for determining the strength of the
justifications required for a specific sentence”).
Accordingly, we affirm the district court’s sentence.
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