UNITED STATES of America, Plaintiff-Appellee v. Charles T. BACON, Defendant-Appellant
No. 16-1884
United States Court of Appeals, Eighth Circuit.
February 22, 2017
Submitted: February 6, 2017
Counsel who represented the appellee was James J. Kelleher, AUSA, of Springfield, MO.
Before RILEY, Chief Judge, SMITH and BENTON, Circuit Judges.
PER CURIAM.
Charles T. Bacon pled guilty without a written plea agreement to being a felon in possession of a firearm in violation of
On April 2, 2014, Bacon, in an agitated state, entered a woman‘s home and demanded she call 911. When police arrived, Bacon opened the front door holding a shotgun and the responding officer, “believ[ing] the shotgun wаs . . . readily capable of lethal force,” took “a position of cover.” The officer re-advanced toward the woman‘s home and found Bacon running
At Bacon‘s sentencing held March 31, 2016, the district court applied a two-level enhancement because the offense involved between three and seven firearms pursuant to U.S.S.G. § 2K2.1(b)(1), a two-level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a), and a one-level reduction for assisting authorities in the investigation pursuаnt to U.S.S.G. § 3E1.1(b), resulting in a total offense level of 13.2 With a criminal history category of IV, Bacon‘s advisory Guidelines rаnge was 24 to 30 months imprisonment. The district court expressly considered the sentencing factors under
Bacon contends this “substantial” upward variance is unjustified and substantively unreasonable. In reviewing the substantive reasonableness of a sentence, we apply “a deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). According to Bacon, the extent of the upward variance is unwarranted because the district court based it on factors already accounted for in Bacon‘s Guidelines sentencing range. Bacon relies on United States v. Wiley, 509 F.3d 474 (8th Cir. 2007), in whiсh we determined a variance of nearly twice the upper limit of the defendant‘s advisory Guidelines rаnge was unreasonable because the district court relied primarily on its concerns for just punishment and deterrence given the defendant‘s criminal history, factors already accounted for in calсulating the Guidelines range. Id. at 478-79. We note Wiley was decided four days before Gall, and under Gall, “[w]e must ‘give[] due deference to the District Court‘s reasoned and reasonable decision that the § 3553(a) factors, on the whole, justified the sentence.‘” United States v. Cole, 721 F.3d 1016, 1024 (8th Cir. 2013) (alteration in original) (quoting Gall, 552 U.S. at 59-60, 128 S.Ct. 586).
While we must consider “the extent оf any variance from the Guidelines range” in evaluating whether a district court abused its discretion in sentencing, Gall, 552 U.S. at 51, 128 S.Ct. 586, “[w]e may not require ‘“extraordinary” circumstances to justify a sentence outside the Guidelines’ and arе prohibited from ‘the use of a rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence.‘” United States v. Feemster, 572 F.3d 455, 462 (8th Cir. 2009) (en banc)
Here, the district court carefully considered whether Bacon had made аn effort to improve his respect for the law given his criminal history, whether a sentence of imprisonmеnt within the advisory Guidelines range would promote respect for the law, and whether a sentence of imprisonment within the advisory Guidelines range would adequately protect the public from Bacon‘s future offenses. These are all permissible factors to consider when varying from the advisory Guidelines sentence. See
The judgment is affirmed.