United States v. Don Elbert, II
20 F.4th 413
| 8th Cir. | 2021Background:
- 2007: Elbert convicted of sex trafficking of a minor; sentenced to 96 months' imprisonment and 15 years' supervised release.
- Elbert repeatedly violated supervised release; this appeal arises from revocation of his fourth term (began July 2019).
- Probation alleged April–June 2020 violations; district court found seven violations including failure to pay restitution, failure to report, associating with a drug user and a minor, failure to attend sex-offender counseling, and unlawful possession of controlled substances.
- Guidelines: most serious violation = Grade C; criminal-history category IV → advisory range 6–12 months (reflected in a probation violation worksheet). Defense requested "a year and a day."
- District court varied upward and sentenced Elbert to 28 months' imprisonment, with no supervised release to follow.
- Elbert did not object at sentencing on the contested points; appellate review applied plain-error review for procedural claims and abuse-of-discretion for substantive reasonableness.
Issues:
| Issue | Elbert's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the court properly determined the most serious grade and calculated the guideline range | Court failed to state calculation and grade at sentencing | Revocation packet/worksheet contained correct guideline calculation; defendant requested an above-range sentence | No plain error; worksheet showed correct 6–12 month range and defendant sought a sentence exceeding it |
| Whether the court adequately explained the sentence under 18 U.S.C. § 3553(a) | Explanation was insufficient for an upward variance | Court cited nature of violations, repeated noncompliance, need to protect public and promote respect for supervision; detailed recitation not required | Explanation adequate; no obvious error and no reasonable probability a fuller explanation would change outcome |
| Whether the 28-month sentence was substantively unreasonable | Upward variance from 6–12 months to 28 months was excessive | Elbert is a recidivist violator; upward variance and discharge from supervision were appropriate | Sentence was reasonable and not an abuse of discretion; affirmed |
Key Cases Cited
- United States v. Olano, 507 U.S. 725 (1993) (plain-error standard for unpreserved claims)
- Gall v. United States, 552 U.S. 38 (2007) (procedural requirement to calculate/consider advisory Guidelines)
- United States v. Keatings, 787 F.3d 1197 (8th Cir. 2015) (no plain error where revocation packet included guideline analysis and defendant sought sentence)
- United States v. Dieken, 432 F.3d 906 (8th Cir. 2006) (court need not recite each §3553(a) factor if record shows they were considered)
- United States v. Growden, 663 F.3d 982 (8th Cir. 2011) (abuse-of-discretion standard for revocation sentences)
- United States v. Kocher, 932 F.3d 661 (8th Cir. 2019) (upward variances appropriate for recidivist violators)
- United States v. Baker, 491 F.3d 421 (8th Cir. 2007) (affirming longer sentence and discharge from supervision for repeated violator)