United States v. Keith Overbey, 2012 U.S. App. LEXIS 21126

Keith Overbey aided his sister’s bank robbery by planning, driving the getaway car, and supplying the rifle used in the robbery; he later directed his son to discard the rifle.
After the robbery, Overbey’s ex-girlfriend Mangrum reported Overbey tried to influence his son Ryan not to testify.
A federal grand jury charged Overbey with armed bank robbery, using a firearm during a bank robbery, and being a felon in possession; the jury found Counts II and IV guilty and Count I not guilty, with Counts I and II later dismissed as inconsistent.
At sentencing, the PSR calculated offense level 24 with an obstruction of justice enhancement and a criminal history category IV, yielding a 161–180 month guidelines range, plus an 84-month statutory minimum for Count II.
The district court varied upward to 240 months, citing Underrepresented criminal history and lack of remorse, plus broader 3553(a) considerations; Overbey timely appeals the sentence as procedurally and substantively unreasonable.
We affirm the sentence, concluding no procedural error and that the upward variance was reasonable under 3553(a).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court adequately explained the sentence.	Overbey argues the court’s explanation was insufficient.	The government contends the court stated it considered 3553(a) factors and provided a reasoned basis.	No procedural error; the explanation was adequate.
Whether the upward variance was substantively reasonable.	Overbey asserts the variance was unsupported by the Guidelines and misapplies the facts.	The district court properly considered broad 3553(a) factors, including criminal history and conduct toward family.	Variance was substantively reasonable; district court did not abuse discretion.
Whether the variance based on conduct toward Overbey’s son was permissible given the Guidelines already accounted for obstruction of justice.	Overbey claims § 3553(a) factors were misapplied because the obstruction enhancement already captured the conduct.	Broader § 3553(a) considerations can be used for a variance when factors are not fully accounted for by the Guidelines.	Permissible; court did not abuse discretion in considering broader factors.

Gall v. United States, 552 U.S. 38 (U.S. 2007) (procedural error requires adequate explanation of sentence or plain error review)
Rita v. United States, 551 U.S. 338 (U.S. 2007) (requires reasoned basis for sentence and consideration of parties’ arguments)
Moore, 565 F.3d 435 (8th Cir. 2009) (requires only that district court show awareness and consideration of § 3553(a) factors)
Perkins, 526 F.3d 1107 (8th Cir. 2008) (evidence district court considered relevant factors satisfies appeal)
Barrett, 552 F.3d 724 (8th Cir. 2009) (recidivism allowed as basis for upward variance under § 3553(a))
Richart, 662 F.3d 1037 (8th Cir. 2011) (variance based on broader § 3553(a) considerations when not fully accounted by Guidelines)
Jones, 509 F.3d 911 (8th Cir. 2007) (district court may apply broader considerations in granting a variance)
Sayles, 674 F.3d 1069 (8th Cir. 2012) (standard for reviewing sentencing determinations)
Molnar, 590 F.3d 912 (8th Cir. 2010) (plain-error review applicable when no objection to sentencing explanation)