United States v. Michael Kenney , 479 F. App'x 40 ( 2012 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-2005
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Michael Wayne Kenney, *
* [UNPUBLISHED]
Appellant. *
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Submitted: February 13, 2012
Filed: June 26, 2012
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Before GRUENDER, BENTON, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Michael Wayne Kenney entered a plea of guilty to escaping from custody in
violation of 18 U.S.C. § 751. The district court1 sentenced Kenney to 46 months’
imprisonment, and Kenney now appeals the district court’s grant of the Government’s
request for an upward departure pursuant to U.S.S.G. § 4A1.3. For the reasons that
follow, we affirm.
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
The district court granted a three-level upward departure based on Kenney’s
substantially under-represented criminal history, resulting in a total offense level of
14, a criminal history category of VI, and an advisory sentencing guidelines range of
37 to 46 months’ imprisonment. The district court then sentenced Kenney to 46
months’ imprisonment. On appeal, Kenney argues that the “court failed to
sufficiently consider [his] positive qualities” and that he “was sufficiently punished
by the four[-]level enhancement relating to [his] conduct after he left the halfway
house.”
“A district court’s decision to depart upward from the advisory guideline range
is reviewed for abuse of discretion, and the extent of that departure is reviewed for
reasonableness.” United States v. Ruvalcava-Perez, 561 F.3d 883, 886 (8th Cir.
2009). “If reliable information indicates that the defendant’s criminal history
category substantially under-represents the seriousness of the defendant’s criminal
history or the likelihood that the defendant will commit other crimes, an upward
departure may be warranted.” U.S.S.G. § 4A1.3(a)(1).
The district court noted that Kenney had 23 criminal history points, 10 more
than the 13 needed to qualify for a criminal history category of VI—the highest
category available. Additionally, the district court observed that there was
“considerable unscored criminal history going back years and years” that was
unscored due to the time elapsed since the convictions. Among the unscored offenses
the district court specifically listed were two instances of operating a vehicle while
intoxicated, two cases of false use of a financial instrument, operating a motor vehicle
without the owner’s consent, forgery, and public intoxication. In imposing the
sentence, the district court lamented that she could not “work with [Kenney] in the
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community because he escapes. When I have him on supervised release, he doesn’t
do what he’s told. He continues to violate.”2
The first basis Kenney asserts in support of his position that the district court
abused its discretion by imposing an upward departure under § 4A1.3 is that the
district court gave “short shrift to Kenney’s positive qualities.” The only information
Kenney offers about his “positive qualities” are statements made in two letters written
in support of him. However, at the sentencing hearing, the district court indicated
that it was aware of the contents of those letters and would consider them. Kenney’s
second basis for his contention is his belief that the district court failed to consider
that the four-level “enhancement” Kenney received relating to his criminal conduct
after he escaped from custody provided sufficient punishment. See U.S.S.G.
§ 2P1.1(b)(3) (stating that a four-level reduction for some offenders who escape from
various non-secure custody facilities does not apply when the escapee commits an
“offense punishable by a term of imprisonment of one year or more” while away from
the facility). Kenney’s counsel, however, raised this argument before the district
court. Because the district court was cognizant of Kenney’s arguments above, we
presume that the district court considered and rejected them. See United States v.
Wisecarver, 644 F.3d 764, 774 (8th Cir.), cert. denied, 565 U.S. ---, 132 S. Ct. 533(2011).
We find no abuse of discretion in the district court’s decision to impose the
three-level upward departure, and, to the extent Kenney raises the issue, we hold that
the degree of the departure is reasonable. See Ruvalcava-Perez, 561 F.3d at 886-87(upholding a two-level upward departure where the defendant had 17 criminal history
points, the points did not reflect offenses that were not prosecuted but involved
similar conduct to a crime at issue in the case, and the record indicated that the
2
The district court revoked Kenney’s supervised release in August 2008 after
he violated numerous conditions of his supervised release.
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defendant was unable to conform his conduct to the requirements of the law). We
therefore affirm.3
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3
Kenney argues for the first time in his reply brief that “[t]he district court
failed to adequately explain Kenney’s sentence—and, more specifically, the upward
departure given to Kenney—under the factors in 18 U.S.C. § 3553(a).” We decline
to address this argument. See United States v. Barraza, 576 F.3d 798, 806 n.2 (8th
Cir. 2009) (“Arguments raised for the first time in a Reply Brief need not be
addressed.”).
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