United States of America v. Malik Ross
No. 21-1578
United States Court of Appeals For the Eighth Circuit
April 4, 2022
Submitted: January 10, 2022
Before LOKEN, GRUENDER, and ERICKSON, Circuit Judges.
GRUENDER, Circuit Judge.
After Malik Ross pleaded guilty to embezzlement of bank funds and conspiracy to embezzle bank funds, the district court1 sentenced him to 120 months’ imprisonment, an upward variance of approximately nine yеars from Ross‘s
I.
Malik Ross pleaded guilty to embezzlement and conspiracy to embezzle. See
Before the sentencing hearing, Ross prоvided information to the district court about his intellectual disability, including his low IQ and receipt of social-security disability benefits. At the sentencing hearing, the district court found by a preponderance of the evidence that Ross acted recklessly in firing his gun fourteen times аnd attempted to evade responsibility by leaving town. The district court varied upward from the guidelines range for Ross‘s embezzlement convictions and chose a sentence between the guidelines ranges for involuntary manslaughter and second-degree murder that “reflect[ed] the seriousness of the [shooting] offense, the reckless disregard for the community in discharging 14 rounds into the neighborhood, resulting in a death [of a child] and serious injury to another person, the dangers to the community, and, to some extent, to deter similar conduct.” The district court also said it considered Ross‘s intellectual disability in making its determination. Ross was sentenced to 120 months’ imprisonment on each count to be served concurrently. Ross appeals, arguing that the district court procedurally
II.
In reviewing a sentence, we first determine whether the district court committed a significant procedural error. United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc). Then “we review for substantive reasonableness.” United States v. Godfrey, 863 F.3d 1088, 1094 (8th Cir. 2017). We review a sentence for an abuse of discretion, see id., but if a defendant fails to object аt sentencing to an alleged procedural error, we apply plain error review, United States v. Isler, 983 F.3d 335, 341 (8th Cir. 2020).
A.
“Procedural errors include failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the
First, Ross argues that the district court procedurally еrred by failing to explain its consideration of his intellectual disability as a mitigating factor. See
We conclude that the district court properly explained its decision to vary upward by about nine years. The district court said that it сonsidered Ross‘s intellectual disability yet determined that an upward variance was proper after weighing the
B.
Next, Ross argues that his ten-year prison sentence is substantively unreasonable. “In the absence of procedural error below, we should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Feemster, 572 F.3d at 461 (internal quotation marks omitted). “A district court abuses its discretion when it (1) fails tо 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 factors commits a clear error of judgment.” United States v. Borromeo, 657 F.3d 754, 756 (8th Cir. 2011). In determining the sentence to impose, a district court is required to consider factors such as “the nature and circumstances of the offense and
1.
First, Ross argues that his sentence is substantively unreasonable because the district court weighed too heavily the uncharged shooting incident in varying upward by approximately nine years.2 We disagree. In varying, a district court is permitted to consider whether the guidelines range adequately “reflect[s] the seriousness of the offense,” “afford[s] adequate deterrence,” аnd “protect[s] the public.” See
Although an approximately nine-year variance is significant, we have affirmed substantial upward variances based on the serious nature of a defendant‘s conduct, including when the conduct is uncharged and related or unrelated to the offense of conviction. See, e.g., Anderson, 926 F.3d at 956-58 (affirming an upward variance from a guidelines range of 15 to 21 months’ imprisonment to 120 months’ imprisonment due to an uncharged shooting incident that nearly resulted in death and was unrelated to the defendant‘s conviction); Godfrey, 863 F.3d at 1092-94, 1099-1100 (affirming an upward variance from a guidelines range of 30 to 37 months’ imprisonment to 120 months’ imprisonment due to the defendant‘s firing of a handgun near children in a public park); United States v. Waller, 689 F.3d 947, 956-57, 960-61 (8th Cir. 2012) (affirming an upward variance from a guidеlines range of 10 to 16 months’ imprisonment to 60 months’ imprisonment due to an uncharged murder); United States v. Porter, 439 F.3d 845, 847-48, 850 (8th Cir. 2006) (affirming an upward variance from a guidelines range of 57 to 71 months’ imprisonment to 120 months’ imprisonment due to pending kidnapping charges related to the offense of conviction).
Thus, we conclude that the district court did not abuse its discretion in relying heavily on the uncharged shooting incident to vary upward by approximately nine years. See Anderson, 926 F.3d at 958; Borromeo, 657 F.3d at 756.
2.
Second, Ross argues that his sentence is substantively unreasonable because the district court granted no weight to several mitigating factors: his intellectual
The district court has “wide latitude” in weighing the
Ross‘s policy-statement argument has no merit because the district court considered § 5K2.1, including “the extent to which death or serious injury was intended or knowingly risked,” by noting that Ross recklessly fired the gun fourteen times. Finally, as to Ross‘s guidelines-range argument, “[t]he court‘s sentencing discretion is not limited to what the Guidelines-range sentence would have been had [the dеfendant] been convicted of an offense related to [the prior uncharged conduct].” See Anderson, 926 F.3d at 958. Thus, the district court did not abuse its discretion in varying significantly upward despite the existence of mitigating factors. See id.
For the foregoing reasons, we affirm Ross‘s sentence.
ERICKSON, Circuit Judge, concurring.
Malik Ross stands convicted of embezzling bank funds, not manslaughter or murder. Yet he received a 120-month sentence—more than eight times the high end of the applicable guidelines range—because a judge determined he recklessly fired a gun resulting in the tragic death of a child. Missouri prosecutors expressly declined to charge Ross for the killing. And he disputed his culpability at sentencing, arguing that he fired the shots in self-defense after two individuals confronted him and shot first. Rather than a jury deciding Ross‘s guilt beyond a reasonable doubt, however, the sentencing judge found him responsible for homicide undеr a more-likely-than-not standard.3 Though the guidelines and our precedent allow that outcome, I believe the Constitution demands otherwise.
The Sixth Amendment guarantees every person “accused” of a crime the right to a trial “by an impartial jury.” Combined with the Fifth Amendment‘s Duе Process Clause, that command means “each element of a crime [must] be proved to the jury beyond a reasonable doubt.” Alleyne v. United States, 570 U.S. 99, 104 (2013). Facts that increase the penalty for a crime are elements. See Apprendi v. New Jersey, 530 U.S. 466, 483 n.10 (2000). “It unavoidably follows that any fact necessary to prevent a sentence from being substantively unreasonable—thereby exposing the defendant to the longer sentence—is an element that must be either admitted by the defendant or found by the jury.” Jones v. United States, 574 U.S. 948, 949-50 (2014) (Scalia, J., joined by Thomas and Ginsburg, JJ., dissenting from denial of certiorari); seе United States v. McReynolds, 964 F.3d 555, 564 n.1 (6th Cir. 2020) (collecting separate opinions advocating similarly).