United States v. Kelley Dull, 641 F. App'x 669

Kelley Dull pleaded guilty to wire fraud and was sentenced to 6 months’ imprisonment and 3 years’ supervised release.
While on supervision, Probation reported failures to pay restitution and unlawful use of controlled substances and alcohol; Dull stipulated to three violations.
The government recommended 12 months’ imprisonment; Dull asked for continued supervision or a 3–9 month sentence under the Chapter 7 guideline range.
The district court revoked supervision and imposed 12 months’ imprisonment with no supervised release to follow.
Dull did not object at sentencing to the court’s reference to 18 U.S.C. § 3553(a)(2)(A) factors but later argued on appeal that considering those factors was legal error.
The Eighth Circuit reviewed for plain error (because Dull did not preserve the objection) and affirmed the district court.

Issue	Plaintiff's Argument (Dull)	Defendant's Argument (Government/District Court)	Held
Whether district court erred by considering § 3553(a)(2)(A) factors at post-revocation sentencing under § 3583(e)	Consideration of § 3553(a)(2)(A) is improper because § 3583(e) does not list those factors	Consideration of those factors is not explicitly prohibited and the court also relied on factors § 3583(e) does list	No plain error; affirmation — even if error, not plain and did not affect substantial rights
Standard of review	Argued for de novo review as a question of law	Court invoked abuse-of-discretion standard for sentencing but plain-error review for unpreserved procedural complaints	Applied plain-error review; error must be plain and affect substantial rights
Prejudice from alleged error	The § 3553(a)(2)(A) references affected the sentence and Dull would likely have received a lighter term absent them	The § 3553(a)(2)(A) references did not predominate; court properly considered permissible § 3553(a) factors	No reasonable probability of a lighter sentence; substantial-rights requirement not met
Whether circuit precedent requires treating consideration of § 3553(a)(2)(A) as procedural error	Dull relied on a circuit split showing some circuits treat it as error	Eighth Circuit has not held that such consideration is per se procedural error	Eighth Circuit declines to adopt per se error rule here; affirms sentence

United States v. Young, 640 F.3d 846 (8th Cir. 2011) (standard for reviewing revocation sentences)
United States v. Fonder, 719 F.3d 960 (8th Cir. 2013) (legal error constitutes abuse of discretion)
United States v. Miller, 557 F.3d 910 (8th Cir. 2009) (unpreserved sentencing errors reviewed for plain error)
United States v. Olano, 507 U.S. 725 (1993) (plain-error test and corrective-discretion standard)
United States v. Young, 470 U.S. 1 (1985) (error affecting fairness, integrity, or public reputation of judicial proceedings)
United States v. Pirani, 406 F.3d 543 (8th Cir. 2005) (prejudice standard for sentencing error — reasonable probability of a different outcome)
United States v. Clay, 752 F.3d 1106 (7th Cir. 2014) (discussing circuit split on considering § 3553(a)(2)(A) at post-revocation sentencing)