United States v. Kirby David
2012 U.S. App. LEXIS 13546
| 8th Cir. | 2012Background
- David pled guilty to being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1) and admitted to trafficking firearms to an undercover ATF agent; prior felony convictions include burglary/stealing (1985), first degree tampering with utilities (1989), stealing (1997), and a 2004 felon-in-possession conviction with 63 months custody and 3 years supervision; his supervised release from the 2004 conviction was revoked in 2009; he was arrested for the present case in January 2011; the district court sentenced him to 72 months’ imprisonment with 3 years’ supervised release; PSR calculated offense level as 15 with a 30–37 month guideline range but allowed a four-level enhancement for possession with another felony, producing a 46–57 month range, which the government did not oppose; the court declined to follow the low end and upwardly variance to 72 months, citing concern about his likelihood of reoffending and the need to deter further crime; David challenges the sentence on appeal as substantively unreasonable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the upward variance was an abuse of discretion. | David argues the court overweighted prior conviction as a benchmark. | David contends factors already in guidelines cannot justify variance. | No abuse; variance supported by §3553(a) factors. |
Key Cases Cited
- United States v. Bryant, 606 F.3d 912 (8th Cir. 2010) (abuse-of-discretion review for sentence; procedural and substantive considerations)
- United States v. Nissen, 666 F.3d 486 (8th Cir. 2012) (procedural sufficiency and consideration of §3553(a) factors)
- Mejia-Perez v. United States, 635 F.3d 351 (8th Cir. 2011) (upward variance may reflect repeated conduct after prior punishment)
- Gall v. United States, 552 U.S. 38 (S. Ct. 2007) (guidelines-based sentences; not percentage-based justification)
- Chase v. United States, 560 F.3d 828 (8th Cir. 2009) (prior sentences can inform variances even if counted in advisory range)
- Washington v. United States, 515 F.3d 861 (8th Cir. 2008) (upward variance for repeated criminal behavior)
- Elodio-Benitez, 672 F.3d 584 (8th Cir. 2012) (affirming deference to district court’s §3553(a) weighting)
- Lozoya, 623 F.3d 624 (8th Cir. 2010) (abuse of discretion standard; weight given to factors)