United States v. Byron Hamber ( 2022 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-3307
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United States of America
Plaintiff - Appellee
v.
Byron Allen Hamber
Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas - Central
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Submitted: October 18, 2021
Filed: February 2, 2022
[Unpublished]
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Before COLLOTON, ERICKSON, and STRAS, Circuit Judges.
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PER CURIAM.
Byron Hamber pled guilty to being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). At sentencing, the district court1 calculated an
advisory guideline range of 12 to 18 months’ imprisonment, but concluded that
1
The Honorable Lee P. Rudofsky, United States District Judge for the Eastern
District of Arkansas.
several factors justified an upward variance from the advisory range and imposed a
72-month term of imprisonment. Hamber appeals, claiming his sentence is
substantively unreasonable and the court provided an inadequate explanation for the
sentence. We affirm.
The court received, without objection, a Presentence Investigation Report
(“PSIR”) that recounts Hamber’s criminal history as well as over 200 disciplinary
violations while he was incarcerated. Hamber has convictions for raping a 12-year-
old, residential burglary, commercial burglary, in-custody battery on two separate
occasions, and also first-degree assault and terroristic threatening regarding an
incident where he threw urine on a deputy and threatened the deputy’s family.
Included among Hamber’s disciplinary violations while in state custody are: 29
instances of making verbal or written threats, 5 instances of attempted assault or
threatening jail staff, 2 instances of battery as to an inmate, 4 instances of battery as
to jail staff, 9 instances of battery resulting in injury as to jail staff and/or
possession/introduction of a firearm or weapon, an aggravated battery, 15 instances
of indecent exposure, 9 instances of throwing or ejecting fluids or excrement,
another instance of striking a person with bodily fluid, 8 instances of destruction of
state property, 7 instances of tampering with or blocking a lock, and breaking into
another’s room. Hamber was released from prison on October 29, 2018.
Approximately 11 months after Hamber’s release from custody, law
enforcement officers discovered, during a traffic stop, marijuana in the driver’s seat
and a .32 caliber pistol under the front passenger seat. The pistol had a live round
in the chamber and a live round in the magazine. Hamber admitted the marijuana
and the firearm belonged to him. He stated that he purchased the firearm in October
2018 from an unknown individual in North Little Rock, Arkansas. 2
2
Hamber did not object to these statements in the PSIR. As part of the factual
basis during the plea hearing, Hamber admitted that he purchased the firearm in
North Little Rock in October 2018 for approximately $130. During the sentencing
hearing, Hamber backtracked from his previous admissions and claimed that he
purchased the gun in September 2019.
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Hamber was indicted by the grand jury for being a felon in possession of a
firearm and eventually entered an open plea of guilty to the charge. Before
sentencing, the government filed a motion seeking an upward variance to 72 months
on the grounds that Hamber’s rape conviction was more aggravated than simple
statutory rape, that Hamber admitted he obtained a firearm days after he was released
from state custody, and that his long history of violence posed a risk to the
community. At sentencing, the district court calculated the advisory guideline range
and advised Hamber that he faced a 10-year statutory maximum term of
imprisonment. Hamber sought a sentence within the advisory range of 12 to 18
months.
The district court sentenced Hamber to 72 months’ imprisonment, reasoning
that Hamber’s criminal history category under-represented his criminal history, that
the previous sentence was not an adequate deterrent, and that Hamber had
demonstrated a lack of respect for the law. The district court also relied on the high
likelihood that Hamber would recidivate, the need to protect the public, the
seriousness of the offense, and the “overwhelming factor” of deterrence.
Hamber contends the district court imposed a substantively unreasonable
sentence. He asserts the district court placed too much weight on his history of
criminality and violence and insufficient weight on mitigating evidence in the
record. We review the substantive reasonableness of a sentence under a deferential
abuse of discretion standard. United States v. Feemster, 572 F.3d 455, 461 (8th Cir.
2009) (en banc). A district court abuses its discretion when it “fails to consider a
relevant factor that should have received significant weight, gives significant weight
to an improper or irrelevant factor, or considers only the appropriate factors but
commits a clear error of judgment in weighing those factors.” United States v.
Petersen, 848 F.3d 1153, 1157 (8th Cir. 2017) (quoting United States v. Lozoya, 623
F.3d 624, 626 (8th Cir. 2010)). We consider “the totality of the circumstances,
including the extent of any variance from the Guidelines range” but may not
“consider a sentence outside the range presumptively unreasonable.” United States
v. Foy, 617 F.3d 1029, 1036 (8th Cir. 2010) (citation omitted).
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The record demonstrates that the district court considered Hamber’s
arguments and found them unpersuasive. The record manifestly supports the district
court’s conclusion that Hamber’s history of violence and incorrigibility while
incarcerated warranted an above-guideline sentence to protect the public. Giving
“due deference to the district court’s decision that the § 3553(a) factors, on a whole,
justify the extent of the variance,” Gall v. United States, 552 U.S. 38, 51 (2007), we
conclude that the district court did not abuse its discretion in imposing a term of 72
months’ imprisonment.
We review Hamber’s claims of unwarranted sentencing disparity and the
adequacy of the explanation for his sentence, which were unobjected to below, for
plain error. See United States v. Rodriguez, 682 F. App’x 514, 519 (8th Cir. 2017)
(unpublished per curiam); United States v. Chavarria-Ortiz, 828 F.3d 668, 671 (8th
Cir. 2016). “Under plain-error review, the defendant must show (1) an error, (2) that
the error is plain, and (3) that the error affects the defendant’s substantial rights.”
United States v. Keatings, 787 F.3d 1197, 1202 (8th Cir. 2015).
A district court does not plainly err when it relies on factors set forth in 18
U.S.C. § 3553(a) and provides a reasoned basis for the variance. United States v.
Godfrey, 863 F.3d 1088, 1098 (8th Cir. 2017). The district court stated it considered
all the § 3553(a) factors, which necessarily included unwarranted sentencing
disparity. Before the district court imposed a substantial upward variance from the
advisory guideline range, it posed questions to both counsel regarding the length of
the government’s proposed variance and afforded each side an opportunity to
respond. The court thoroughly explained the reasons for the extent of the variance,
which included Hamber’s long history of violence, danger to others, the need for
adequate deterrence, and the seriousness of the offense. The court committed no
error, plain or otherwise.
The judgment of the district court is affirmed.
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