United States v. Bruce Prevost , 582 F. App'x 668 ( 2014 )

United States Court of Appeals
For the Eighth Circuit
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No. 13-3762
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Bruce Francis Prevost
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: October 31, 2014
Filed: November 10, 2014
[Unpublished]
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Before LOKEN, MELLOY, and GRUENDER, Circuit Judges.
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PER CURIAM.
In this direct criminal appeal, Bruce Prevost challenges the 90-month prison
sentence the district court1 imposed after he pleaded guilty to aiding and abetting
1
The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.
securities fraud. We grant Prevost’s motion to expand the record. For the following
reasons, we conclude that the district court did not commit plain procedural error, see
United States v. Troyer, 677 F.3d 356, 358-59 (8th Cir. 2012) (review for plain error
when defendant did not object at sentencing), and that the sentence is substantively
reasonable, see United States v. Heath, 624 F.3d 884, 886-87 (8th Cir. 2010) (abuse-
of-discretion standard).
Prevost argues it was procedural error for the district court to vary from the
Sentencing Guidelines range based on factors listed in 18 U.S.C. § 3553(a), before
departing based on substantial assistance under U.S.S.G. § 5K1.1(a)(1). Without
deciding whether there was error, we conclude that Prevost has not shown prejudice
because nothing in the record suggests that, but for the alleged error, his sentence
would have been different. See United States v. Ault, 598 F.3d 1039, 1042 (8th Cir.
2010). We find no merit to any suggestion that the district court did not consider the
need to avoid unwarranted sentencing disparities, see 18 U.S.C. § 3553(a)(6), because
the district court specifically stated it had considered this factor.
Prevost also contends the district court erred in determining an appropriate
departure under section 5K1.1, because the court believed it was bound to defer to the
government’s evaluation of the quality of Prevost’s assistance, and because it limited
the extent of the reduction based on considerations not related to his assistance.
Again, the district court’s statements at sentencing show these contentions are wrong.
As to Prevost’s complaint that the district court considered information in an in
camera letter from the government, which he did not personally see, we find no
violation of Fed. R. Crim. P. 32 because Prevost’s attorney received the letter. See
New York v. Hill, 528 U.S. 110, 115 (2000).
Finally, Prevost argues that the disparity between his sentence and that of co-
defendant David Harrold was unwarranted. With regard to the variances from the
Guidelines range--which were identical for Prevost and Harrold--Prevost identifies
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no error in the district court’s consideration of the section 3553(a) factors as applied
to him. See United States v. Borromeo, 657 F.3d 754, 756 (8th Cir. 2011). The
remaining disparity is attributable to the district court’s decision as to the appropriate
departure for each defendant, based on his substantial assistance, and the extent of a
section 5K1.1 departure is not reviewable. See United States v. Dalton, 478 F.3d 879,
881 (8th Cir. 2007); see also United States v. Womack, 985 F.2d 395, 400 (8th Cir.
1993). Accordingly, we affirm.
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