United States v. Gary Kachina ( 2020 )

United States Court of Appeals
For the Eighth Circuit
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No. 18-2184
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Gary Allen Kachina
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: April 7, 2020
Filed: April 16, 2020
[Unpublished]
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Before COLLOTON, WOLLMAN, and KELLY, Circuit Judges.
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PER CURIAM.
Following this court’s remand for resentencing, United States v. Kachina, 715
Fed. Appx. 587 (8th Cir.) (unpublished per curiam) (vacating sentence imposed after
jury found defendant guilty of felon-in-possession offense because intervening case
law established he was not an armed career criminal under 18 U.S.C. § 924(e)), cert.
denied, 139 S. Ct. 271 (2018), the district court resentenced Gary Kachina to 120
months in prison and five years of supervised release. On appeal, Kachina argues
through counsel that the district court erred in denying his requests for an
acceptance-of-responsibility reduction and a downward variance. In addition, in
briefs filed after Kachina was granted leave to proceed pro se, he asserts plain-error
challenges to his conviction under Rehaif v. United States, 139 S. Ct. 2191 (2019),
which was issued during the pendency of this appeal, because the jury had found
Kachina guilty under 18 U.S.C. § 922(g) pursuant to an instruction that did not
require the government to prove he knew he had been convicted of a crime
punishable to imprisonment for a term exceeding one year.
Turning first to Kachina’s challenges to his conviction under Rehaif, we
conclude that Kachina has not established he is entitled to plain-error relief because
evidence was introduced at Kachina’s trial that he had multiple convictions for which
he had received sentences of more than one year in prison, and there was information
in the revised presentence report—to which Kachina did not object—indicating that
he had actually served multiple prison terms of well over one year. See United States
v. Davies, 942 F.3d 871, 873 (8th Cir. 2019) (setting forth standard of review);
United States v. Hollingshed, 940 F.3d 410, 414-16 (8th Cir. 2019) (concluding that
record showed defendant knew he had been convicted of crime punishable by
imprisonment for term exceeding one year, and any error in not instructing the jury
to make such a finding did not affect his substantial rights), cert. denied, 2020 WL
1326060 (U.S. Mar. 23, 2020); see also United States v. Cotton, 535 U.S. 625, 630-33
(2002) (concluding under plain-error review that indictment error did not seriously
affect fairness of judicial proceedings); United States v. Anderson, 570 F.3d 1025,
1029-30 (8th Cir. 2009) (discussing plain-error review of sufficiency of evidence).
As to the sentence imposed, we conclude that the district court did not commit
clear error by denying an acceptance-of-responsibility reduction, in part because
Kachina only partially accepted responsibility by acknowledging he possessed
firearms while pursuing a necessity defense. See United States v. Erhart, 415 F.3d
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965, 971(8th Cir. 2005). We further conclude that the district court did not abuse its
discretion by denying a downward variance, and that the sentence imposed was not
unreasonable under the circumstances. See United States v. Parker, 762 F.3d 801,
806 (8th Cir. 2014).
However, we agree with the government that, because the statutory maximum
term of supervised release is three years, the district court erred by imposing a
five-year term of supervised release. See 18 U.S.C. § 3583(b)(2). Accordingly, we
vacate the supervised-release portion of Kachina’s sentence and remand with
instructions that the district court impose a term of supervised release of “not more
than three years.” See id. The district court’s judgment is otherwise affirmed, and
Kachina’s pending motions are denied.
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