United States v. Brian Bear Heels

1 The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-1388
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Alexei Pena, *
* [UNPUBLISHED]
Appellant. *
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Submitted: October 3, 2006
Filed: October 4, 2006
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Before RILEY, COLLOTON, and GRUENDER, Circuit Judges.
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PER CURIAM.
A jury found Alexei Pena guilty of conspiring to distribute and distributing
cocaine, and he was sentenced to 41 months in prison and 3 years of supervised
release. After Pena began serving his supervised release, the probation office
petitioned for revocation, alleging that Pena had violated his release conditions. At
the revocation hearing, the district court 1 revoked supervised release and imposed a
new sentence of 18 months in prison. Pena appeals, arguing that the district court
abused its discretion by sentencing him without considering the factors in 18 U.S.C.
§ 3553(a), as required by 18 U.S.C. § 3583(e), including the Guidelines Chapter 7

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2As to the arguments raised in Pena’s supplemental brief, “it is Eighth Circuit
policy to refuse to consider pro se filings when a party is represented by counsel.”
United States v. Martin, 59 F.3d 767, 768 n.2 (8th Cir. 1995).
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policy statements and the 3-9 month revocation range recommended under Chapter
7. For the reasons discussed below, we reject this argument and conclude that the
sentence was not unreasonable. See United States v. Nelson, 453 F.3d 1004, 1006
(8th Cir. 2006) (reasonableness standard of review for revocation sentences).
Although the recommended sentencing range and the violation worksheet
which included the recommended range were not explicitly mentioned at the
sentencing hearing, we cannot say that the court failed to consider the appropriate
factors and policy statements: the violation worksheet was available to the court; the
court conferred with the probation officers immediately prior to imposing sentence;
the court discussed Pena’s violations as well as his inability to tell the truth, accept
personal responsibility, and respond to supervision; the same judge presided over
Pena’s original and revocation sentencing hearings, and the judge’s remarks indicated
a recognition of Pena’s history and characteristics; and the court repeatedly declined
at sentencing to give Pena another chance to continue on supervision because of his
refusal to admit the truth. See United States v. Larison, 432 F.3d 921, 923 (8th Cir.
2006) (district court need not mechanically list every § 3553(a) consideration when
sentencing defendant upon revocation of supervised release); United States v.
Franklin, 397 F.3d 604, 607 (8th Cir. 2005) (fact that same judge presided over
original sentencing hearing and revocation hearing implied familiarity with
defendant’s history and characteristics, and district court’s awareness of defendant’s
numerous and repeated violations of release conditions supported inference that court
was aware of relevant § 3553(a) factors); United States v. Otto, 176 F.3d 416, 418
(8th Cir. 1999) (district court is presumed to know and apply the law).
Accordingly, we affirm the sentence. 2

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