United States v. Dshaun ButlerUnited States v. Dshaun Butler
Paul S. Becker, Asst. U.S. Atty., Kansas City, MO (Tammy Dickinson, U.S. Atty., on the brief), for appellee.
Before RILEY, Chief Judge, MELLOY and KELLY, Circuit Judges.
RILEY, Chief Judge.
Dshaun J. Butler pled guilty to being a felon in possession of a firearm in violation of
On February 8, 2012, Butler pled guilty to being a felon in possession of a firearm. Before sentencing, the United States Probation Office prepared a presentence investigation report calculating an advisory Guidelines range of 46 to 57 months imprisonment (level 17, category V). Butler objected to the inclusion of a certain state conviction in his criminal history calculation because that conviction was vacated and subject to de novo review in state court. The district court overruled Butler’s objection and sentenced Butler to 57 months imprisonment. In imposing Butler’s sentence, the district court stated it considered varying upward, but determined 57 months was the appropriate sentence for Butler based upon the district court’s analysis of the
While Butler’s initial appeal was pending, we granted his unopposed motion for remand to the district court for resentencing in light of the state court’s dismissal of the contested conviction. On remand, the district court—accounting for the state court dismissal—recalculated Butler’s advisory Guidelines range to be 37 to 46 months imprisonment (level 17, category IV). After considering Butler’s arguments and the lower advisory Guidelines range, the district court varied upward and again sentenced Butler to 57 months imprisonment based upon the
“After settling on the appropriate sentence, [a district court] must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.” Gall v. United States, 552 U.S. 38, 50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); see also
Butler argues the district court committed procedural error at resentencing by failing “to adequately explain its basis for imposing the same sentence despite [Butler’s] reduced guideline range.” In Butler’s view, his receipt of the same sentence on remand “create[s] an impression that [he] was sentenced more harshly following his successful appeal.” Because Butler did not raise this objection at sentencing, we review for plain error. See United States v. Pirani, 406 F.3d 543, 549 (8th Cir.2005) (en banc);
Having thoroughly reviewed the record, we are satisfied the district court committed no error, plain or otherwise, in imposing or explaining Butler’s sentence. “In explaining the sentence the district court need only ‘set forth enough to satisfy the appellate court that [the district court] has considered the parties’ arguments and has a reasoned basis for exercising [its] own legal decisionmaking authority.’” United States v. Moore, 565 F.3d 435, 437 (8th Cir.2009) (quoting Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)). The district court did that and more.
After reviewing the record from the first sentencing and considering the parties’ respective arguments regarding the appropriate sentence on remand, the district court articulated specific reasons for varying upward and imposing the same 57-month sentence, “even though the guidelines ha[d] lessened for [Butler].” In
And there is absolutely nothing in the record to “create an impression” that the district court varied upward in retaliation for Butler appealing his initial sentence. To the contrary, at Butler’s initial sentencing, the district court considered varying upward from the advisory Guidelines range based on its thorough analysis of the
III. CONCLUSION
We affirm the judgment of the district court.