United States v. Francis Kistler
70f4th450
8th Cir.2023Background:
- Francis Kistler, a former sheriff’s deputy, was indicted on six counts relating to attempting to induce/enticement of a minor and transferring obscenity to a minor; he pleaded guilty to a superseding information charging the enticement conduct (consolidating Counts 3 and 4).
- As part of the plea, the government agreed to dismiss the original indictment and both parties recommended a 120‑month sentence.
- The district court filed a notice of upward departure consideration under U.S.S.G. § 5K2.21 (allowing departure based on dismissed-count conduct) and alternatively considered an upward variance under 18 U.S.C. § 3553(a).
- The court sustained Kistler’s objection to a two‑level Guidelines enhancement, calculated a Guidelines range of 188–235 months, but rejected the parties’ 120‑month recommendation and sentenced Kistler to 300 months by upward departure (counting dismissed counts) and alternatively by upward variance.
- In explaining the variance, the court emphasized the extreme seriousness of the offense, Kistler’s abuse of his law‑enforcement position, the need to protect public perception, and that the Guidelines did not adequately account for the offense’s gravity.
- Kistler appealed, arguing procedural error (double counting dismissed counts and reliance on an unproven count) and that the 300‑month sentence was substantively unreasonable for failure to give adequate weight to mitigation.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Procedural error: consideration of dismissed counts / double counting | Kistler: district court improperly counted enticement counts twice and relied on Count 5 without proof by preponderance | Government: any procedural error is harmless because the court also imposed the same sentence via an explained § 3553(a) variance focused on other factors | Any procedural error was harmless; variance rationale independently supports the sentence; affirmed |
| Substantive reasonableness of 300‑month sentence | Kistler: district court failed to adequately weigh mitigating factors and justify such a long sentence | Government: sentence reasonable given offense seriousness, abuse of position, and Guidelines’ inadequate accounting; district court permissibly weighed factors | Sentence is substantively reasonable; no abuse of discretion; affirmed |
Key Cases Cited
- United States v. Feemster, 572 F.3d 455 (8th Cir. 2009) (articulates deferential abuse‑of‑discretion standard for appellate review of sentences)
- United States v. O'Connor, 567 F.3d 395 (8th Cir. 2009) (two‑step review: procedural error then substantive reasonableness)
- United States v. Timberlake, 679 F.3d 1008 (8th Cir. 2012) (procedural error in upward departure is harmless when sentence also rests on an explained § 3553(a) variance)
- United States v. Farmer, 647 F.3d 1175 (8th Cir. 2011) (district court’s weighing of sentence factors is not reversible simply because defendant disagrees)