EEOC v. Product Fabricators, Inc.

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-1377
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Larry Huston, *
* [UNPUBLISHED]
Appellant. *
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Submitted: November 14, 2011
Filed: January 30, 2012
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Before WOLLMAN, MURPHY, and BENTON, Circuit Judges.
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PER CURIAM.
Larry Huston pled guilty to being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). The district court departed upward from the1
United States Sentencing Guidelines (Guidelines or U.S.S.G.) range and sentenced
Huston to 78 months’ imprisonment. Huston appeals his sentence, and we affirm.
The Honorable Linda R. Reade, Chief Judge, United States District Court for1
the Northern District of Iowa.

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I.
On December 7, 2008, a police officer saw Huston carrying a camouflage gun
case. The officer recognized Huston and suspected that he might be a felon. Later,
after the officer had confirmed his suspicion, Huston was questioned at the police
station and consented to a search of his residence. Police found three firearms during
the search. Huston mistakenly believed his gun rights had been restored, along with
his voting rights. Huston pled guilty to being a felon in possession of a firearm.
The presentence report calculated Huston’s offense level to be 19 and placed
him in criminal history category V. The advisory Guidelines sentencing range was
57 to 71 months’ imprisonment. At the sentencing hearing, the government argued
for an upward departure based on Huston’s unscored criminal history, under U.S.S.G.
§ 4A1.3. Huston argued for a downward variance. Specifically, Huston argued that
the following facts supported a downward variance: his belief that his gun rights had
been restored; the fact that he had guns only for hunting; his efforts to assist in
rebuilding after Hurricane Katrina in New Orleans, Louisiana, and flooding in Cedar
Rapids, Iowa; and the 18 years that had elapsed between his conviction for burglary,
a violent felony, and his current conviction. The district court departed upward one
criminal history category, placing Huston in criminal history category VI. The
Guidelines range was then 63 to 78 months’ imprisonment, and the district court
sentenced Huston to a 78-month term of imprisonment. Huston argues that the
district court’s decision to depart upward, as well as its decision to deny his request
for a downward variance, was in error.
II.
We review the district court’s decision to impose an upward departure for
abuse of discretion. United States v. Johnson, 648 F.3d 940, 942 (8th Cir. 2011).
“[A] district court may impose an upward departure ‘if reliable information indicates
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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.’” Id. (quoting U.S.S.G. § 4A1.3(a)(1)). “When
contemplating and structuring such a departure, the district court should consider both
the nature and extent of a defendant’s criminal history.” United States v. Walking
Eagle, 553 F.3d 654, 657 (8th Cir. 2009) (quoting United States v. Hacker, 450 F.3d
808, 812 (8th Cir. 2006)).
Huston had been assessed twelve criminal history points, placing him in
criminal history category V. The court noted that “there is substantial unscored
criminal history,” including conspiracy to commit burglary, operating a motor vehicle
without the owner’s consent, forgery, theft, escape from custody, and public
intoxication. The court concluded:
I think Mr. Teig’s point about unscored criminal history is a substantial
argument. I find that his criminal history is underscored. I find that he
has a high likelihood to recidivate based on his prior criminal history,
his alcohol issues that he has not come to grips with, his unwillingness
to conform his behavior to court orders or to authority, lenient sentences
and treatments have not deterred him, and his apparent disrespect for the
law.
Sentencing Tr. 19-20.
We conclude that the district court did not abuse its discretion in departing
upward in this case. A decision to depart upward may constitute an abuse of
discretion when, for example, the district court departs upward multiple levels
without sufficient explanation. See, e.g., United States v. Azure, 536 F.3d 922, 932
(8th Cir. 2008). Here, in contrast, the district court departed upward only one level
after explaining that the defendant’s unscored criminal history led the court to believe
that he was likely to recidivate. Huston’s criminal history, as he admits, is “lengthy”
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and “substantial.” Sentencing Tr. 9. The decision to depart upward was reasonable,
supported by the record, and within the district court’s discretion.
Huston also argues that because the district court denied his request for a
downward variance his resulting sentence is substantively unreasonable. “We will
not reverse a sentence as substantively unreasonable absent a showing of abuse of
discretion by the district court.” United States v. San-Miguel, 634 F.3d 471, 475 (8th
Cir. 2011). “A district court abuses its discretion when it fails to consider a relevant
factor, gives significant weight to an irrelevant or improper factor, or considers only
appropriate factors but nevertheless commits a clear error of judgment . . . .” Id.
(quoting United States v. Jones, 509 F.3d 911, 913 (8th Cir. 2007)).
Huston contends that the district court did not give enough weight to mitigating
factors and over-emphasized his older criminal history rather than focusing on his
more recent criminal history. We disagree. The sentencing transcript demonstrates
that the district court was well aware of the circumstances surrounding Huston’s
firearm possession, including his mistaken belief that his gun rights had been restored
and his full criminal history. That the district court’s evaluation of these facts
resulted in a sentence different from that which Huston had hoped for does not
constitute an abuse of discretion. “[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. Feemster, 572 F.3d 455, 464
(8th Cir. 2009) (en banc) (quoting United States v. Gardellini, 545 F.3d 1089, 1090
(D.C. Cir. 2008)). This is not that case.
III.
The judgment and sentence are affirmed.
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