United States v. Curtis Robert McGhee, 869 F.3d 703

Curtis Robert McGhee pleaded guilty to assault resulting in serious bodily injury and was sentenced to 71 months imprisonment plus three years supervised release.
First supervised-release term began January 30, 2013; petition to revoke filed January 26, 2015 alleging four violations (two admitted: failure to reside/participate in a RRC and alcohol use; two dismissed: simple and aggravated assault under tribal law); result: nine months imprisonment and 18 months supervised release.
Second supervised-release term began February 24, 2016; on June 28, 2016 probation filed a petition alleging McGhee failed to give ten days’ notice before changing residence; McGhee admitted the violation.
District court calculated the advisory Guidelines range for the violation as six to twelve months but sentenced McGhee to 18 months imprisonment and 18 months supervised release.
McGhee appealed, arguing procedural error for failure to meaningfully consider 18 U.S.C. § 3553(a) factors and that the sentence was substantively unreasonable.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether district court procedurally erred by failing to consider § 3553(a) factors when revoking supervised release	McGhee: court’s rote recitation of § 3553 was insufficient; it did not identify or explain the factors it relied on	Government: court stated it was required to consider § 3553 and the record shows it considered offense nature, defendant’s history, and Guidelines range	No procedural plain error: court demonstrated awareness and consideration of § 3553 factors
Whether district court improperly considered conduct underlying dismissed allegations from prior revocation when sentencing	McGhee: referencing dismissed alleged conduct (arrest/intoxication) was improper and given significant weight	Government: court may consider conduct underlying arrests even if charges were dismissed, subject to normal sentencing limits	No abuse: consideration of dismissed conduct was permissible and not shown to be given improper weight
Whether court failed to give significant weight to mitigating facts (minor nature of violation, improvement on release)	McGhee: his violation was minor and he showed overall improvement (no recent problems, employment, contact with probation) warranting a lesser sentence	Government: court heard and considered these mitigating arguments but weighed them against other factors	No abuse: court discussed and considered mitigating factors; sentence not substantively unreasonable

United States v. Miller, 557 F.3d 910 (8th Cir. 2009) (standard of review for revocation sentencing)
United States v. White Face, 383 F.3d 733 (8th Cir. 2004) (court need not list every § 3553(a) consideration; need evidence court considered relevant matters)
United States v. Adams, 104 F.3d 1028 (8th Cir. 1997) (reference to some § 3553(a) considerations shows awareness of statute)
United States v. White, 840 F.3d 550 (8th Cir. 2016) (court may consider conduct underlying an arrest even if charges dismissed)
United States v. Mousseau, 517 F.3d 1044 (8th Cir. 2008) (what constitutes an abuse of discretion in weighing sentencing factors)
United States v. Miles, 499 F.3d 906 (8th Cir. 2007) (record showing the court heard argument on factors suffices even without lengthy explanation)