Jaysen McCleary v. Reliastar Life Insurance Co.

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-3265
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Sean E. Gasaway, *
*
Appellant. *
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Submitted: April 20, 2012
Filed: June 18, 2012
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Before LOKEN and SHEPHERD, Circuit Judges, and GERRARD, District Judge.1
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SHEPHERD, Circuit Judge.
Sean Gasaway pled guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). The district court sentenced Gasaway to 652
months imprisonment. Gasaway appeals his sentence. We affirm.
The Honorable John M. Gerrard, United States District Judge for the District1
of Nebraska, sitting by designation.
The Honorable David Gregory Kays, United States District Judge for the2
Western District of Missouri.

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I.
On October 7, 2011, police officers conducted surveillance of a building that
had been recently burglarized, and they observed a vehicle back into an area near the
rear of the building. As the vehicle left the building area, the officers followed it and
ran a car-check, which revealed that the vehicle was registered to Gasaway and that
there was an outstanding warrant for his arrest. While the officers were following the
car, Gasaway pulled over into the yard of a home. Officers then took Gasaway into
custody based on the outstanding warrant. Officers conducted an inventory search
of the vehicle, which revealed the presence of a 6.62 x 39mm semi-automatic rifle
that was loaded with six rounds of ammunition and contained a round in the chamber.
The rifle was located directly behind the driver’s seat. Gasaway’s record revealed
that he had been previously convicted of felonies.
The Government charged Gasaway with being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1), and Gasaway pled guilty to the charge.
Gasaway’s Sentencing Guidelines range was 27 to 33 months based on an adjusted
offense level of 12 and a Category V criminal history.
At sentencing, the parties did not dispute the PSR’s calculation of the
sentencing range. The Government asked for a sentence at the top of the range based
on Gasaway’s extensive criminal history, which included repeated assaults on women
and included a recent prior conviction for being a felon in possession of a firearm.3
Roughly five months after Gasaway was released from prison on his prior felon-in-
possession conviction, he was charged with battery and intimidation of a witness as
a result of his assault on his girlfriend. Following the witness intimidation
Gasaway was sentenced to 50 months imprisonment for his previous felon-in -3
possession charge but was given supervised release after three years imprisonment
for good conduct.
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conviction, the Government filed a petition for revocation of Gasaway’s supervised
release, and a revocation hearing was pending at the time of Gasaway’s arrest on the
instant charges. In response to the Government’s request for a top-of-the-range
sentence, Gasaway asked the court to sentence him at the bottom of the sentencing
range based on the rough circumstances of his life. Gasaway argued that he grew up
in a neighborhood filled with gangs, which he eventually joined. At the age of 18,
he was shot 8 times and became paranoid and started drinking heavily. Gasaway
asserted that most of his domestic violence could be attributed to alcohol use and
noted that he carries a weapon based on the paranoia stemming from his being shot.
After hearing the arguments from each side, the court determined that an upward
variance was appropriate under the factors established in 18 U.S.C. § 3553(a) and
sentenced Gasaway to 65 months imprisonment with three years of supervised
release.
II.
Gasaway argues that his sentence is substantively unreasonable because the
court erred in failing to address each of the section 3553(a) factors. Though Gasaway
describes his appeal as a challenge to the substantive reasonableness of the sentence,
to the extent that he argues that the district court erred in failing to correctly consider
the section 3553(a) factors, Gasaway makes an argument of procedural error. See
United States v. Keating, 579 F.3d 891, 893 (8th Cir. 2009). Gasaway did not make
any objections of procedural error at sentencing, thus our review is for plain error.
United States v. Deegan, 605 F.3d 625, 629 (8th Cir. 2010).
Section 3553(a) lists factors that a court must consider in determining a
particular sentence. Those factors are:
(1) the nature and circumstances of the offense and the history
and characteristics of the defendant; (2) the need for the sentence
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imposed—(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct; (C) to protect the
public from further crimes of the defendant; and (D) to provide the
defendant with needed educational or vocational training, medical care,
or other correctional treatment in the most effective manner; (3) the
kinds of sentences available; (4) the kinds of sentence and the
sentencing range established for—(A) the applicable category of offense
committed by the applicable category of defendant as set forth in the
guidelines . . . (5) any pertinent policy statement . . . issued by the
Sentencing Commission . . . ;(6) the need to avoid unwarranted sentence
disparities among defendants with similar records who have been found
guilty of similar conduct; and (7) the need to provide restitution to any
victims of the offense.
18 U.S.C. § 3553(a)(1)-(7) (line breaks omitted).
Gasaway argues the court erred because it “failed to address the numerous
substance abuse and mental health problems suffered by . . . Gasaway and the obvious
additional hardship associated with those issues which would warrant a sentence
within the sentencing guidelines.” Gasaway also argues that “[t]he sentence imposed
by the court did not address the disparity between sentences throughout the country”
and “failed to fully address the fact that . . . Gasaway would be significantly punished
for violating his Supervised Release.”
The district court expressly considered many of the section 3553(a) factors.
Specifically, the court focused on the nature and circumstances of the offense. The
court noted that Gasaway had been involved in assaultive behavior and that the
firearm was loaded with a round in the chamber when Gasaway was arrested. The
court remarked on the highly dangerous nature of a violent person possessing a
loaded weapon. Additionally, the court spoke to the nature and circumstances of
Gasaway individually and noted his assaultive history. The court also expressed
concern that Gasaway’s prior conviction for being a felon in possession carried a
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much higher sentence than that recommended by the Guidelines for his instant
offense. The court worried that giving Gasaway a lower sentence for his second
identical offense would not further the sentencing objective of deterrence. The court
also noted that immediately upon release from his last conviction for being a felon in
possession, Gasaway committed an assault.
Gasaway is correct that the district court did not expressly address the section
3553(a) factor of the need to avoid unwarranted sentencing disparities and also did
not directly address Gasaway’s difficult life or alcohol problems. However, the court
stated it had considered all of the sentencing factors, and it is clear from the record
that the court was on notice of Gasaway’s mitigating life circumstances. In
sentencing a defendant, “it is often enough that a judge only reference some of the
factors.” United States v. McGlothen, 556 F.3d 698, 702 (8th Cir. 2009). “Although
the court could have made specific reference to other factors relevant under §
3553(a), we are satisfied that the court was aware of the statute and adequately
considered it in determining the appropriate sentence.” United States v. Benton, 627
F.3d 1051, 1055 (8th Cir. 2010). “The district court is presumed to know the law in
regard to sentencing and need not recite each factor to be upheld. When we review
the § 3553(a) factors, we will look to the entire record.” Keating, 579 F.3d at 893
(internal citation omitted). Accordingly, the court committed no procedural error.
Gasaway also contends that his sentence was substantively unreasonable based
on an argument that the court gave too much weight to some of the section 3553(a)
factors and not enough weight to others. “‘Substantive appellate review in sentencing
cases is narrow and deferential . . . . [I]t will be the unusual case when we reverse a
district court sentence—whether within, above, or below the applicable Guidelines
range—as substantively unreasonable.’” United States v. Shuler, 598 F.3d 444, 447
(8th Cir. 2010) (quoting United States v. Feemster, 572 F.3d 455, 464 (8th Cir. 2009)
(en banc)). “When the district court imposes a sentence outside the Guidelines range,
. . . . [we] ‘may consider the extent of the deviation, but must give due deference to
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the district court’s decision that the § 3553(a) factors, on a whole, justify the extent
of the variance.’” United States v. Osei, Nos. 11-1447, 11-1448, 2012 WL 1758824
at 4 (8th Cir. May 18, 2012) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)).
The court stated that it considered all of the section 3553(a) factors. It was within the
court’s discretion to determine what weight to give each factor in the determination
of Gasaway’s sentence. “‘[A] sentencing court has wide latitude to weigh the section
3553(a) factors in each case and assign some factors greater weight than others in
determining an appropriate sentence.’” United States v. Richart, 662 F.3d 1037, 1054
(8th Cir. 2011), cert. denied, __ S Ct. __, No. 11-9218, 2012 WL 761546 (Apr. 16,
2012) (quoting United States v. Lozoya, 623 F.3d 624, 627 (8th Cir. 2010)). We
recognize that Gasaway’s sentence is substantially longer than the top of his
Guideline sentencing range. However, the court did not abuse its considerable
discretion in weighing the section 3553(a) factors and in arriving at Gasaway’s
sentence.
III.
For the foregoing reasons, we affirm.
Loken, Circuit Judge, concurring.
I agree that Mr. Gasaway’s sentence is not substantively unreasonable and for
that reason concur in the decision to affirm. He did not assert a claim of procedural
sentencing error either in the district court or on appeal. I therefore disagree with the
section of the opinion that conjures up such an issue and gives it plain error review.
See United States v. Brewer, 628 F.3d 975, 978 (8th Cir. 2010), cert. denied, 132 S.
Ct. 126 (2011).
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