UNITED STATES of America, Plaintiff-Appellee v. Jon R. MISQUADACE, also known as Jon R. Misquadace-Spry, also known as Jon R. Spry, Defendant-Appellant.
No. 14-2740.
United States Court of Appeals, Eighth Circuit.
Submitted: Feb. 9, 2015. Filed: Feb. 19, 2015.
778 F.3d 717
On appeal, Raymond argues only that possession of a handgun is not a violent felony under the Armed Career Criminal Act (ACCA). But he misunderstands
In the case of a person who violates
section 922(g) of this title and has three previous convictions ... for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years....
Moreover, a challenge to the district court‘s conclusion regarding Raymond‘s previous convictions would fail: We previously have determined that convictions under the Minnesota statutes that Raymond violated are violent felonies under
Raymond suggests we should reserve review of his case pending the outcome of Johnson v. United States, in which the Supreme Court granted certiorari to decide whether possession of a sawed-off shotgun is a “violent felony” under the ACCA.2 An administrative panel of this court rejected Raymond‘s earlier request to stay the briefing deadline. And Raymond did not possess a sawed-off shotgun, nor does he have a previous conviction for possessing any gun, so the outcome in Johnson will make no difference to his sentence or his appeal.
We thus affirm the judgment of the district court and uphold Raymond‘s 15-year sentence.
Thomas J. Wright, AUSA, argued, Sioux Falls, SD, for Appellee.
Before GRUENDER, SHEPHERD, and KELLY, Circuit Judges.
PER CURIAM.
Jon Misquadace pleaded guilty of failure to pay legal child support in violation of
I. Background
On June 18, 2013, a petition to revoke Misquadace‘s probation was filed. On January 23, 2014, Misquadace admitted he had failed to assign his tribal gaming per capita payment to the South Dakota Department of Social Services in violation of his probation conditions. Misquadace remained on probation and was ordered to pay $200 per month toward his outstanding child-support balance. The condition that he assign his per capita payment to the Department of Social Services was eliminated.
On April 28, 2014, a second petition to revoke Misquadace‘s probation was filed because Misquadace allegedly failed to report a change of residence. At his revocation hearing, Misquadace admitted the violation, and his probation was revoked. He explained that he had been homeless for a period of time because of his alcohol addiction but that he had independently pulled himself together again, joined a new church, obtained housing, and was attempting to get his life back in order for the benefit of his children. Misquadace‘s violation was a Grade C offense, and his advisory Guidelines sentencing range was 8 to 14 months’ imprisonment. The district court sentenced Misquadace to the statutory maximum of 24 months’ imprisonment and 1 year of supervised release, and reduced the amount of restitution owed to $53,716. Misquadace timely filed his notice of appeal.
II. Discussion
Misquadace argues on appeal that his revocation sentence is substantively unreasonable. Misquadace contends the district court failed to consider his mitigating evidence and gave too much weight to improper evidence of Misquadace‘s payment history.
“We review a district court‘s revocation sentencing decisions using the same standards that we apply to initial sentencing decisions.” United States v. Miller, 557 F.3d 910, 915-16 (8th Cir. 2009). Because Misquadace does not argue the district court committed any procedural error, we review only the substantive reasonableness of his sentence. “[W]e consider the substantive reasonableness of the length of the sentence under an abuse-of-discretion standard.” Id. at 916. “A district court abuses its discretion when it ‘(1) fails to consider a relevant factor that should have received significant weight; (2) gives significant weight to an improper or irrelevant factor; or (3) considers only the appropriate factors but in weighing those
The district court stated at the revocation hearing the following reasoning in support of the 24-month sentence in this case:
I feel like I got a pig in a poke. You made promises to me and didn‘t fulfill any of those promises. It‘s just six, seven months later. We‘re at a point now where California doesn‘t want you back. They don‘t want to supervise you. It is too much—it takes too much effort on their part to supervise you. You‘re not fulfilling the promises you made to me.
You have the money coming in. You get $400 a month from the tribe. You made no effort to pay any of those payments until you got put in jail.
This isn‘t just a one-way street where probation and I and your lawyer do all the work, and you don‘t fulfill any part of the bargain. You didn‘t fulfill one part of the promises that you made to me last time in January.
...
In light of the fact that this is your second supervised release revocation [petition] within seven months, and the fact that you didn‘t make any payments until you were put into custody, normally paying child support and getting restitution to the victims would be a high priority. But in light of your payments that have been made, other than when you were in custody, it doesn‘t appear to be a high priority for you.
So I‘m going to go back to the original guideline range of 24 months in custody, and sentence you to 24 months in custody, with one year of supervised release that will follow after that.
We agree with Misquadace that the district court gave greater weight to his payment history than to the mitigating evidence he presented at his revocation hearing. This court, however, gives district courts “wide latitude to weigh the
III. Conclusion
For the reasons above, we affirm Misquadace‘s sentence.