United States v. Michael Never Misses A Shot
2013 U.S. App. LEXIS 10159
8th Cir.2013Background
- Never Misses A Shot pled guilty to making false statements in violation of 18 U.S.C. § 1001(a)(2) under a written plea agreement.
- At sentencing the district court upwardly departed from the advisory guidelines range via USSG § 4A1.3(a)(1) and § 5K2.0, resulting in a higher advisory range.
- The PSR showed extensive prior criminal history (category IV), with several uncounted prior adult convictions and arrests.
- The court increased the criminal history category by two levels to VI and the total offense level from 4 to 12, yielding a 30–37 month range.
- The district court then imposed the sentence of 36 months’ imprisonment.
- On appeal, Never Misses A Shot challenges the upward departures and the substantive reasonableness of the sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether upward departures were reasonable | Never Misses A Shot argues departures were unreasonable | Never Misses A Shot contends departures were warranted by 4A1.3(a)(1) and 5K2.0 | Upward departures were not abuse of discretion; supported by record |
| Whether the arrest record supported the departure | Never Misses A Shot relies on the arrest record to argue under-representation | The PSR details support considering arrests beyond entrusted history | Court did not err; arrests properly considered as part of broader history |
| Whether § 5K2.0 departure was proper | Never Misses A Shot claims offense-specific factors justify departure | Court found the offense significantly different and serious | Upward departure under § 5K2.0 affirmed |
| Rodgers distinction in § 1001 context | Rodgers supports broader heartland under § 1001 | Rodgers is distinguishable and not controlling | Rodgers distinguishable; departure permissible under case-specific factors |
| Whether the sentence is substantively reasonable | Sentence exceeds necessary punishment | Court considered § 3553(a) factors and substantial offense history | Sentence substantively reasonable under deferential review |
Key Cases Cited
- United States v. Feemster, 572 F.3d 455 (8th Cir. 2009) (abuse-of-discretion standard for sentencing; en banc)
- United States v. Hacker, 450 F.3d 808 (8th Cir. 2006) (upward departure based on arrest history with sufficient detail)
- United States v. Young, 272 F.3d 1052 (8th Cir. 2001) (sentencing court may accept PSR facts absent objection)
- United States v. Robertson, 324 F.3d 1028 (8th Cir. 2003) (departure warranted when conduct significantly differs from heartland)
- United States v. Richart, 662 F.3d 1037 (8th Cir. 2011) (distinguishes Robertson and upholds § 5K2.9 departure in § 1001 case)
- Gall v. United States, 552 U.S. 38 (2007) (reasonableness review; deference to district court within § 3553(a) framework)
- Rodgers, 466 U.S. 475 (1984) (Rodgers supports § 1001 scope; not controlling heartland per caselaw)