United States v. Jeremy Fank ( 2019 )


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  •                  United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 18-1583
    ___________________________
    United States of America
    lllllllllllllllllllllPlaintiff - Appellee
    v.
    Jeremy Adam Fank
    lllllllllllllllllllllDefendant - Appellant
    ____________
    Appeal from United States District Court
    for the Northern District of Iowa - Ft. Dodge
    ____________
    Submitted: March 11, 2019
    Filed: April 16, 2029
    [Unpublished]
    ____________
    Before GRUENDER, BENTON, and GRASZ, Circuit Judges.
    ____________
    PER CURIAM.
    The district court1 revoked Jeremy Fank’s supervised release and sentenced
    him to 30 months’ imprisonment and 6 months’ supervised release. Fank appeals,
    arguing that his revocation sentence is substantively unreasonable. We affirm.
    1
    The Honorable Leonard T. Strand, Chief Judge, United States District Court
    for the Northern District of Iowa.
    About five years into Fank’s original eight-year term of supervised release, the
    United States Probation Office filed a petition to revoke his supervised release,
    alleging twenty violations, some of which had subparts, including failing to report for
    substance abuse testing, violating the law by operating while under the influence,
    using alcohol, failing to report to his probation officer, and using a controlled
    substance. The district court found “that all of the alleged violations in the petition
    except for number 18 [had] been established.” The district court then determined a
    criminal history category of III and an advisory sentencing guidelines range of 5 to
    11 months. After considering the 
    18 U.S.C. § 3553
    (a) factors, the court varied
    upward and sentenced Fank to 30 months’ imprisonment and 6 months’ supervised
    release.
    Fank argues that his sentence is substantively unreasonable. He claims the
    district court abused its discretion by inadequately considering mitigating factors and
    improperly focusing on aggravating factors.              We review the substantive
    reasonableness of a sentence under a deferential abuse of discretion standard. Gall
    v. United States, 
    552 U.S. 38
    , 41, 51 (2007). “A district court abuses its discretion
    if it fails to consider a relevant factor that should have received significant weight,
    gives significant weight to an improper or irrelevant factor, or commits a clear error
    of judgment in weighing the appropriate factors.” United States v. Longs, 
    806 F.3d 1001
    , 1001 (8th Cir. 2015) (per curiam); United States v. Miller, 
    557 F.3d 910
    , 917
    (8th Cir. 2009).
    Fank first argues that the district court “inadequately considered mitigating
    factors . . . namely his work history, addiction, mental health, family dynamics, [and]
    remorse and acceptance.” But the district court recognized Fank’s success “for some
    period of time after starting supervision,” his drug addiction, and his acknowledgment
    that he “made a few mistakes.” Additionally, Fank informed the district court of his
    work history and the support of various family members. See United States v. Grimes
    
    702 F.3d 460
    , 471 (8th Cir. 2012) (“We presume the district court considers such
    -2-
    matters as are presented to it.”). Thus, the district court adequately considered the
    mitigating factors.
    Fank next argues that the district court “inordinately focus[ed] on aggravating
    factors.” He claims the district court “failed to adequately justify its substantial
    upward variance.” The district court noted Fank’s law violations,2 failure to comply
    with substance abuse testing, failure to report to probation, “various instances of not
    being truthful with United States Probation,” and a long series of positive sweat patch
    tests showing methamphetamine use. The district court reasoned that because of the
    “extreme extent” of Fank’s conduct and the number of violations, “a very significant
    sentence [was] appropriate.” The district court also noted its responsibility to protect
    the public and to deter criminal conduct. See 
    18 U.S.C. § 3553
    (a). It reasoned that
    a light sentence would not accomplish those goals.
    “The district court has wide latitude to weigh the § 3553(a) factors in each case
    and assign some factors greater weight than others in determining an appropriate
    sentence.” United States v. Bridges, 
    569 F.3d 374
    , 379 (8th Cir. 2009). Given the
    extent of Fank’s supervised release violations, this is not “the unusual case when we
    reverse a district court sentence . . . as substantively unreasonable.” United States v.
    Whitlow, 
    815 F.3d 430
    , 436 (8th Cir. 2016). The district court properly considered
    the aggravating factors and did not abuse its discretion.
    We affirm.
    ______________________________
    2
    Fank briefly argues that the district court abused its discretion by considering
    alleged violation eighteen to constitute a violation of law. But it is clear from the
    record that the district court merely observed that “even though [it] didn’t find a law
    violation, clearly Mr. Fank had significant contact with law enforcement.” Fank also
    argues that the district court improperly considered violation fifteen, but the record
    shows that Fank admitted that violation.
    -3-
    

Document Info

Docket Number: 18-1583

Filed Date: 4/16/2019

Precedential Status: Non-Precedential

Modified Date: 4/16/2019