United States v. Robert McFarland , 187 F. App'x 663 ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-4061
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United States of America, *
*
Appellee, *
* Appeal From the United States
v. * District Court for the
* District of Nebraska.
Robert McFarland, *
* [UNPUBLISHED]
Appellant. *
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Submitted: June 15, 2006
Filed: July 7, 2006
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Before SMITH, HEANEY, and GRUENDER, Circuit Judges.
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PER CURIAM.
Robert Allan McFarland pled guilty to one count of conspiracy to commit bank
fraud. He was sentenced to eighteen months of imprisonment, to be followed by three
years of supervised release. On appeal, McFarland argues that the district court1 erred
by refusing to grant him a downward departure because his criminal history was
overstated, and imposed an unreasonable sentence. We affirm.
1
The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
BACKGROUND
The conspiracy in this case involved a scheme to defraud financial institutions
by cashing checks drawn on fictitious accounts. In order to further the conspiracy,
McFarland obtained a driver's license using the name of a coconspirator's minor son.
Another coconspirator then wrote a check from a fictitious account with McFarland's
alias as the payee. McFarland then cashed the check using his false identification.
On March 24, 2005, McFarland was charged by indictment with one count of
conspiracy to commit bank fraud, in violation of 18 U.S.C. §§ 371 and 1344, and one
count of aggravated identity theft, in violation of 18 U.S.C. § 1028A. Pursuant to a
plea agreement, McFarland agreed to plead guilty to the conspiracy offense and to
cooperate against his coconspirators. In turn, the government agreed to dismiss the
charge of aggravated identity theft, which would have carried an additional twenty-
four month consecutive prison term. 18 U.S.C. § 1028A(a), (b).
Prior to sentencing, a presentence report (PSR) was prepared. It recommended
an adjusted offense level of 10, and determined McFarland's criminal history category
as VI, for a resulting guidelines range of twenty-four to thirty months of
imprisonment. Both McFarland and the government objected to the PSR's failure to
grant McFarland a two-level reduction in recognition of his minor role in the offense.
See USSG § 3B1.2. The district court sustained the objection, for a resulting offense
level of 8 and guidelines range of eighteen to twenty-four months. McFarland also
objected to his placement in criminal history category VI, arguing that it overstated
his actual criminal record. The court treated this as a motion for a downward
departure pursuant to United States Sentencing Guidelines section 4A1.3, and denied
the motion. With a guidelines range of eighteen to twenty-four months, McFarland
was sentenced to eighteen months of imprisonment, to be followed by three years of
supervised release.
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ANALYSIS
On appeal, McFarland advances two claims related to his sentence: that the
district court erred in failing to grant him a downward departure, and that the court's
resulting sentence was unreasonable.
As to the first point, it is true that a district court may depart from the
defendant's correctly calculated criminal history category if the court finds that
category "substantially over-represents the seriousness of the defendant's criminal
history or the likelihood that the defendant will commit other crimes." USSG §
4A1.3(b)(1). Where the district court recognizes its authority to depart under this
guidelines section but fails to grant a departure, this "discretionary decision" is
generally unreviewable on appeal. United States v. Andreano, 417 F.3d 967, 970 (8th
Cir. 2005). In its tentative findings, the district court clearly recognized its authority
to depart, citing section 4A1.3. It simply chose not to, citing McFarland's lengthy and
consistent criminal history, which stretched back to when he was only nine years old.
We find no error here.
McFarland next asserts that his sentence is unreasonable in light of the
sentencing factors listed in 18 U.S.C. § 3553(a). "Generally, a sentence is presumed
reasonable when the district court properly considers the defendant's circumstances,
the factors listed in § 3553(a), and the advisory guidelines range when determining
the sentence." United States v. Swehla, 442 F.3d 1143, 1145 (8th Cir. 2006); see also
United States v. Haack, 403 F.3d 997, 1004 (8th Cir. 2005) (a sentence is
unreasonable if it appears the court gave significant weight to an improper factor,
failed to fully consider an appropriate factor, or otherwise made a clear error of
judgment). Our circuit has held, however, that a sentence within the correctly
calculated guidelines range is presumptively reasonable. United States v. Lincoln,
413 F.3d 716, 717 (8th Cir. 2006).
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Having reviewed the record carefully, we have found nothing mandating
reversal of McFarland's sentence. McFarland's argument to this court mirrors the
argument he made below: that his sentence ought to have been shorter because his
criminal history consisted of relatively minor offenses. McFarland's record, however,
indicates a steady string of criminal activity beginning at a very young age and
continuing without significant interruption until the instant offense. While some of
his convictions involved relatively minor offenses, others indicated assaultive
conduct, theft, receiving stolen property, and forgery. Given his history, his argument
that he was entitled to a sentence below his guidelines range is simply without merit.
We note, moreover, that the district court explicitly considered other § 3553(a) factors
in imposing sentence, such as the need for McFarland to receive treatment for his
chemical dependency.
CONCLUSION
McFarland challenges his eighteen-month sentence, arguing that the district
court erred in not imposing a lesser term. We find no such error and thus affirm the
district court.
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