United States v. Jerry Harvey , 690 F. App'x 434 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-3256
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Jerry L. Harvey
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: April 3, 2017
Filed: May 9, 2017
[Unpublished]
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Before GRUENDER, MURPHY, and KELLY, Circuit Judges.
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PER CURIAM.
Jerry Harvey pled guilty to distribution of heroin in violation of 21 U.S.C.
§ 841(a), (b)(1)(C). The district court1 sentenced him to 240 months imprisonment.
1
The Honorable John A. Ross, United States District Judge for the Eastern District
of Missouri.
Harvey appeals, arguing that the district court committed procedural error and
imposed a substantively unreasonable sentence. We affirm.
In November 2014 Harvey acquired heroin and gave some to K.C.C., a 17 year
old girl. She died the next morning because of the heroin she had consumed. Harvey
was then charged with distributing heroin and causing the death of K.C.C. in
violation of 21 U.S.C. § 841(a), (b)(1)(C). He pled guilty to the lesser included
offense of distribution of heroin. Since Harvey's applicable guideline range was
above the statutory maximum sentence, his advisory guideline sentence was the
statutory maximum sentence of 240 months. See U.S.S.G. § 5G1.1(a). The district
court sentenced him to 240 months imprisonment, and he appeals.
We review the sentence imposed by the district court for abuse of discretion.
United States v. Linderman, 587 F.3d 896, 899 (8th Cir. 2009). We must first
determine whether the district court committed procedural error, such as "failing to
consider the [18 U.S.C.] § 3553(a) factors" or failing to explain "adequately . . . the
chosen sentence." Gall v. United States, 552 U.S. 38, 51 (2007). We then consider
the substantive reasonableness of the sentence, taking "into account the totality of the
circumstances." Id.
Harvey first argues that the district court committed procedural error by failing
to explain adequately why a shorter sentence would not have been sufficient. Under
18 U.S.C. § 3553(a), a district court must "impose a sentence sufficient, but not
greater than necessary," given the seriousness of the offense, the need to deter
criminal conduct, the need to protect the public, and the educational, medical, and
correctional needs of the defendant. A district court need not "provide a mechanical
recitation of the § 3553(a) factors," but the record must show "that the district court
actually considered [those] factors in determining the sentence." United States v.
Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (quoting United States v.
Walking Eagle, 553 F.3d 654, 659 (8th Cir. 2009)).
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Here, the record shows that the district court considered the required factors
before determining the appropriateness of a 240 month sentence. The court first
mentioned Harvey's compelling mitigating evidence. The court next discussed the
seriousness of the offense and Harvey's pattern of criminal conduct, observing that
his "reckless conduct through the years ha[d] caused deaths . . . [and] many people
to suffer." The court concluded that "the aggravating circumstances of . . . the
offense," Harvey's "background and history," and his "consistent pattern of criminal
convictions . . . far outweigh[ed] any mitigating factors." It then declined to grant a
downward variance from the 240 month advisory sentence. Given this record, the
district court did not commit procedural error.
Harvey also challenges the substantive reasonableness of his sentence. Since
the bottom of Harvey's applicable guideline range was above the statutory maximum,
"the statutory maximum sentence is presumed reasonable." United States v. Leonard,
785 F.3d 303, 307 (8th Cir. 2015) (per curiam) (quoting United States v. Shafer, 438
F.3d 1225, 1227 (8th Cir. 2006)). Harvey has not rebutted this presumption of
reasonableness. Here, the district court chose "to assign relatively greater weight to
the nature and circumstances of the offense than to the mitigating personal
characteristics of the defendant," a choice that was "well within its wide latitude in
weighing relevant factors" given the record before the court. See id. (internal
quotation marks omitted). We therefore conclude that the district court's sentence
was not substantively unreasonable.
Accordingly, we affirm the judgment of the district court.2
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2
We decline to consider the arguments raised in Harvey's pro se supplemental
brief. See United States v. Halverson, 973 F.2d 1415, 1417 (8th Cir. 1992) (per
curiam).
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