United States v. Timothy Kirlin, 2017 U.S. App. LEXIS 10407

Kirlin was indicted on federal charges including conspiracy to distribute ≥1,000 grams of heroin (and cocaine), possession/distribution of heroin, and being a felon in possession of an explosive device; a jury convicted him on all counts and found his heroin caused a customer’s death.
At trial Kirlin proceeded pro se with standby counsel, made no opening/closing statements, did not cross-examine government witnesses, presented no defense witnesses, and made no motion for acquittal.
At initial sentencing the government asserted two prior drug felonies mandated life under 21 U.S.C. § 841(b)(1)(A); the court imposed life and concurrent terms on other counts.
This Court remanded for resentencing because the two prior convictions should have been counted as one; on remand guideline changes reduced the base offense level, producing a guideline range of 235–293 months.
At resentencing the district court denied a two-level USSG § 3E1.1 acceptance-of-responsibility reduction, varied upward, and imposed concurrent 360-month terms (plus 120 months on the explosive count).

Issue	Kirlin's Argument	Government/District Court Argument	Held
Whether district court plainly erred by denying a USSG § 3E1.1 acceptance-of-responsibility reduction	Kirlin argued he did not contest the government’s case at trial, was misled by counsel about plea exposure, and would have pled guilty but for those problems	The court relied on trial conduct and post-trial statements showing Kirlin denied guilt and did not clearly accept responsibility	No plain error; denial affirmed
Whether the district court failed to consider or explain § 3553(a) factors when upwardly varying	Kirlin argued the court did not adequately consider or explain reasons for upward variance	The district court expressly referenced § 3553(a) factors and explained a within-Guidelines sentence was insufficient	No plain error; explanation and consideration adequate
Whether the 360-month sentence was substantively unreasonable	Kirlin argued the upward variance produced an unreasonable sentence	The court considered offense seriousness, deterrence, public protection, and mitigation; weighed factors and exercised discretion	Not an abuse of discretion; sentence reasonable
Standard of review applicable to procedural and substantive sentencing challenges	N/A (procedural: plain error where no timely objection; substantive: abuse of discretion)	N/A	Court applied plain-error review for forfeited objections and deferential abuse-of-discretion review for substantive reasonableness

Timberlake v. United States, 679 F.3d 1008 (8th Cir. 2012) (framework for procedural then substantive sentence review)
Walter v. United States, 62 F.3d 1082 (8th Cir. 1995) (district court’s acceptance-of-responsibility findings entitled to deference)
McKinney v. United States, 15 F.3d 849 (9th Cir. 1994) (example of rare circumstances where trial conviction did not preclude § 3E1.1 reduction)
Gall v. United States, 552 U.S. 38 (2007) (sentencing courts must consider § 3553(a) factors and explain deviations)
Puckett v. United States, 556 U.S. 129 (2009) (standards for plain-error reversal)
Gonzalez v. United States, 781 F.3d 422 (8th Cir. 2015) (defendant bears burden to prove acceptance of responsibility)
Adejumo v. United States, 772 F.3d 513 (8th Cir. 2014) (denial of § 3E1.1 reversed only if decision is without foundation)
Boykin v. United States, 850 F.3d 985 (8th Cir. 2017) (upward variance affirmed where court properly weighted § 3553(a) factors)