United States v. Jeff BeranUnited States v. Jeff Beran
On this record, there was no clear error. Haury‘s nonbusiness motivations for making the loans included, at a minimum, his considerable if unquantified equity interests in NPGS and NPS Systems, and his interest in enhancing the return on his investment in the licensed technology. His interest as an employee is far from clear. He failed to prove any role in the 2007 day-to-day operations, and his action in subordinating his own loans to persuade Swank to invest makes his role in 2007 look more like an owner-investor than an employee. No doubt Haury made the loans to protect the substantial salaries he received in 2006 and 2007, but on this minimal record the Tax Court was entitled to view the 2007 salary as a form of return-on-investment that did not prove Haury‘s dominant motivation was to protect a business interest as an employee. “We will not find clear error if the tax court‘s account is plausible in light of the record viewed in its entirety, even if we would have weighed the evidence differently.” Musco Sports Lighting, Inc. v. Commissioner, 943 F.2d 906, 907 (8th Cir.1991) (quotation omitted). The Tax Court did not clearly err in finding that Haury failed to prove that his dominant motivation for making the four loans in question made them deductible bad debts when they became worthless in December 2007.
The decision of the Tax Court is reversed in part, and the case is remanded for a redetermination of the deficiency in accordance with this opinion.
Joshua D. Barber, Lincoln, NE, for appellant.
Matthew R. Molsen, AUSA, Lincoln, NE, for appellee.
SHEPHERD, Circuit Judge.
Jeff Beran appeals from a 48-month prison sentence the district court1 im-
Beran pled guilty to conspiracy to distribute 500 grams or more of methamphetamine, in violation of
After the first revocation of supervised release, Beran underwent treatment for alcohol abuse and domestic violence. His probation officer instructed him to not have contact with his ex-girlfriend due to their significant relationship problems. Despite receiving this instruction, Beran made phone calls and sent text messages to his ex-girlfriend, ultimately frightening her and causing her to initiate a protection order proceeding. The probation officer filed a petition seeking revocation of Beran‘s supervised release for violating a condition requiring him to “answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer.” The probation officer recommended Beran serve 48 months in prison.
During the revocation hearing, Beran admitted to the violation. The applicable guideline range was 8 to 14 months imprisonment; however, the district court, after considering various factors, sentenced Beran to 48 months imprisonment with no supervised release. No objections were made asserting any procedural error as to the sentence imposed. Beran now appeals his sentence.
Because Beran failed to object to the adequacy of the district court‘s explanation or consideration of the
Here, because the court reviewed Beran‘s evidence regarding alleged similar supervised release violations for other offenders, we are satisfied that the district court considered the need to avoid unwarranted sentence disparities. The court also adequately explained its reasoning for imposing the sentence, acknowledging the factors listed in section 3553(a), noting the significant sentence reduction made during the earlier Rule 35(b) hearing, considering Beran‘s prior revocation based on his vio-
Beran argues next that his sentence of 48 months imprisonment is substantively unreasonable. We review the substantive reasonableness of a revocation sentence under the abuse-of-discretion standard. United States v. Thunder, 553 F.3d 605, 607 (8th Cir.2009). “A district court abuses its discretion and imposes an unreasonable sentence when it fails to consider a relevant and significant factor, gives significant weight to an irrelevant or improper factor, or considers the appropriate factors but commits a clear error of judgment in weighing those factors.” United States v. Kreitinger, 576 F.3d 500, 503 (8th Cir.2009) (internal quotation marks omitted).
Specifically, Beran claims that given his progress during his supervised release, the nature of his violation, and his history and characteristics, the sentence imposed was too harsh and the court did not provide sufficient grounds for the significant upward departure, as the sentence was more than three times the high end of the guideline range of 8 to 14 months. Having presided over Beran‘s initial sentencing, his Rule 35(b) proceeding, and his first revocation hearing, the district court was well aware of Beran‘s history and characteristics, and, in its thorough explanation, the court noted the significant sentence reduction previously afforded to Beran, the significant amount of resources invested in improving Beran‘s behavior, Beran‘s repeated violations of his supervised release, and the fact that the situations Beran found himself in were fraught with danger. See United States v. Larison, 432 F.3d 921, 922-23 (8th Cir. 2006) (upholding the district court‘s imposition of a 60-month revocation sentence as reasonable although the applicable sentencing guideline range was 5 to 11 months, emphasizing the district court‘s consideration of the initial sentence reduction afforded to the defendant, the amount of resources invested in the defendant‘s correction, and the repeated violations of the terms of the supervised release); United States v. Cotton, 399 F.3d 913, 916-17 (8th Cir.2005) (upholding the district court‘s imposition of a 46-month revocation sentence, despite the 7 to 13 month sentencing guideline range, when the district court considered the previous reduction afforded to the defendant, the repeated violations of supervised release, and the nature of the violations putting the defendant in risk of serious criminal conduct). These considerations adequately support the reasonableness of the sentence imposed.
Finally, we reject Beran‘s argument that his sentence is unreasonable when compared to other sentences of similarly situated offenders. Beran is not entitled to any particular sentence and the sentence imposed is within the statutory limit. See
Accordingly, we affirm the judgment of the district court.