*1
rеasonableness, “it will be the un-
argued only
view of
sition Memorandum
for a
departure
when we reverse a district court
downward
ground.
usual case
on this
above,
within,
or below
program
sentence —whether
Lack of a fast-track
is not a basis
applicable
range
Guidelines
sub-
departure
§
for a
under U.S.S.G.
5K3.1.
—as
v.
stantively unreasonable.” United States
As Elodio-Benitez did not argue at sen-
(8th Cir.2009)
Feemster,
455,
572 F.3d
tencing for a downward variance on this
omitted).
(en banc) (quotation
“The dis- ground,
the district court committed no
weigh
trict
has wide latitude to
plain
failing
error
in
to comment sua
3553(a)
§
assign
factors
each case and
sponte on that
issue. Accord United
greater weight
factors
than others in
Chavez-Ramirez,
some
States v.
2012 WL
(8th
determining
appropriate
128581,
2012) (un-
sentence.”
18,
*2
Cir. Jan.
Borromeo,
754,
v.
657 F.3d
Second,
United States
published).
we
concluded
Jim-
Cir.2011)
(8th
omitted).
(quotation
enez-Perez that the district court commit-
Here,
mitigating
the court considered the
procedural
ted
error in declaring that it
presented and ar-
factors Elоdio-Benitez
lacked the
to vary
discretion
downward on
ticulated a reasoned basis for its sentence.
Here,
ground.
regard immigration for our laws.” United judgment of the district court is Mejia-Perez, v. States 635 F.3d аffirmed. (8th Cir.2011). granted The court signif- variance; icant downward “where a dis-
trict court has sentenced defendant be- advisory guidelines
low range, it is
nearly inconceivable that the court abused
its discretion in varying downward still Moore,
further.” United States v. (8th Cir.2009) (quotation omitted). America, UNITED STATES Appellee, briefed, fully
After the case was Elodio-Benitez submitted a letter urging
that we remand for resentencing light of MOSLEY, Appellant. Delores our recent decision States Jimenez-Perez, Cir. No. 11-1592. 2011), that, where we held in considering Appeals, United States Court of grant
whether a downward variance Eighth Circuit. advisory guidelines range based on thе sentencing factors in 18 U.S.C. Submitted: Oct. 2011. 3553(a), § the absence of a pro fast-track Filed: March gram the sentencing district “should not be categorically excluded as a sentencing omitted).
consideration.” (quotation
We decline to do so for two reasons.
First, pre-sentencing Elodio-Benitez’s Po- *2 Messina, AFPD, argued, P. Des
John AFPD, Moines, IA, Lilledahl, JoAnne brief, IA, Rapids, appellant. Cedar Baumann, AUSA, argued, Cedar Teresa IA, appellee. Rapids, BYE, SMITH, COLLOTON, Before Judges. Circuit COLLOTON, location, Judge. update dispatch Mosley’s Circuit address, the officers continued to a nearby to unlaw- Mosley pleaded guilty Delores Mosley’s niece, they the homе where previously possession ful firearm *3 Mosley sitting steps, found on the front felon, in of 18 convicted violation U.S.C. crying. 922(g). sentencing, calculating § At when approached The officers and Mosley advisory sentencing guideline range, if she had a gun. asked her She answered district court1 a four-level in- applied that had one in she her front coat pocket 2K2.1(b)(6) § pursuant crease to USSG on but unsure was whether it was loaded. ground Mosley possessed that a fire- The officers recovered a .32 calibеr revolv- felony in connection with the state arm Mosley’s pocket, er from and determined “going of armed with intent.” offense that it was loaded with three bullets. § Iowa court also im- Code 708.8. The Mosley that admitted she had no permit special Mosley’s of posed, condition gun, for the and claimed that she had release, prohibition on the found raking it three weeks earlier while bars, use of alcohol frequenting and the in her backyard. leaves ex- She also taverns, and other establishments whose pressed frustration with daughter’s her ne- primary source of income is derived from glectful parenting and told that the officers Mosley challenges the sale of alcohol. on brought “she had her daughter into the appeal both the four-level enhancement world and she could take her out.” special relating and the condition to alco- Mosley hol. was July We affirm. arrested on 2010. prior She had sustained a felony conviction theft, 1989 for second degree and she I. pleaded eventually guilty in this case to 15, 2009, On November at behest of possession pre- unlawful of a firearm as a fiancé, her Stephany Hoskins walked out- viously convicted felon. 18 U.S.C. Waterloo, Iowa, side her home discov- § 922(g). calculating advisory sister, Mosley. Mosley ered her Delores guideline sentencing range, tears, declaring going was “I’m to kill court found that Mosley subject was to a her” and “I’m tired of this and can’t no- four-level increase under USSG body talk me out of this.” Hoskins re- 2K2.1(b)(6)(B), § pos- because she had mother, turned inside their telephonеd firearm “in sessed a connection with anoth- who told her that Mosley distraught. was felony er offense.” Specifically, Mosley had learned granddaugh- that her Mosley found that had violated Iowa Code Erica, had caught ter her hair fire while 708.8, § provides which that person “[a] girl’s daughter, mother and goes who any dangerous weap- armed with at passed was home out. on with the intent to use justifica- without Hoskins contacted Waterloo law en- weapon tion against such person forcement inform authorities to them of felony “going another” commits the against threats Erica and of the armed intent.” yielded The increase possibility Mosley carrying was a fire- advisory guideline range to 24 of 18 home, arm. Officers months, arrived at Hoskins’s and the court sentenced gone. but Responding to an a term 18 months’ imprisonment, a $100 Reade, The Honorable Linda R. Chief Northern District of Iowa. Judge, United Court States District for the daughter. assessment, years weapon against Upset su- her and two daughter carrying district court also her loаded revolv- release. The pervised er, announced, conditions Mos- “I’m kill going several ordered of her,” and, second ley’s supervised release. “I’m tired of can’t this and Mosley from us- prohibits nobody By these of this.” talk me out the time bars, taverns, or her, ing the officers found had traveled whose other establishments mile home from her sister’s to location from the sale of income is derived half only away block and a from her alcohol. daughter’s police She also told residence. brought daughter “shе had into *4 II. world could take out.” In the and she her Mosley argues that first circumstances, light these it was not error calcu committed in procedural clear error for the district court to con- range. She lating advisory guideline that Mosley specific clude exhibited intent increase under challenges four-level injury. to inflict serious 2K2.1(b)(6) § possession for USSG felony in with another
firearm connection
III.
finding for clear
We review this
offense.
Bates,
error,
614
States v.
F.3d
United
Mosley
special
also contests the
(8th Cir.2010),
and consider
493
supervised
condition of
release that she is
supported
actions
whether
prohibited from the use of alcohol and
that she committed
finding
district court’s
taverns,
bars,
or other es
armed with
under Iowa
going
intent
Code
of in
tablishments whose
§ 708.8.
from the
alcohol.
come
derived
sale of
in
Sentencing courts have broad discretion
In
v. Gomez-Her
United States
release,
setting
the terms of
(8th Cir.2002),
nandez,
974, 980
imposition
and we
review
court,
Slayton,
v.
applying
State
conditions for abuse of that discretiоn.
(Iowa 1987),
that
determined
N.W.2d
United States
F.3d
proof
§
“requires
Iowa Code
that the
708.8
(8th Cir.2012). Special
dangerous weapon
defendant carried a
“reasonably
must be
related” to the nature
specific
to use it to inflict
with the
intent
of the
and the
and circumstances
offense
Gomez-Hernandez,
injury.”
serious
3553(a),
§
in 18
sentencing factors
U.S.C.
that
asserts
her con
may
impose
and the conditions
§
duct did not violate
708.8 because she
than is rea
“greater deprivation
liberty
specific
gun
intent to use” her
lacked
sonably
to serve
necessary”
purposes
daughter.
against her
3583(d).
§
sentencing.
18 U.S.C.
clearly
The district court did not
err in
presentence report
Mos-
finding
requi-
that
acted with the
describes
ley’s history of substance
It re-
Although
intent.
conduct
abuse.
site
of-
Slayton,
Mosley’s report
probation
that
flects
was not as extreme as
marijuana daily for ten
chased
his
fice that she used
where the defendant
after
shotgun
years
from 1988 to 1998. She abused
with
loaded
until his
mother
club,
daily
eight
for
months
him with a
417 crack cocaine
father
subdued
age
at
of 30. She underwent
court had suffi- 1990
N.W.2d
abuse treatment
inpatient
carried a
substance
grounds
cient
find
partid-
December 1988 and
intent
the November and
handgun
specific
use
outpatient
approxi-
Prendergast,
for
alcohol. In
States v.
pated in
treatment
(8th Cir.1992),
years
thereafter.
re-
The record also shows a of men- replace marijuana.” course alcohol for 1991, tal In health issues. at- tempted by suicide on sleeping overdоse pills diagnosed was suffering and as from a precedential force of Bass and 2003, major depressive order. In she was Prendergast is limited. In States United at a mental evaluated health center and (8th Bekler, Cir.1999), F.3d 772 187 disorder, diagnosed “depressive with anxi- court an upheld alcohol for a drug ban disorder, use, ety history cannabis and of trafficking defendant who had abused prescribed cocaine abuse.” She has been drugs twenty years, though even he 2001, anti-depressant medications since had approximately discontinued use prescribed anti-depressant and was eight years or nine sentencing, (Prozac) medications fiuoexetine and ami- where the district received evidence triptyline sentencing. the time of from Drug the National Institute on Abuse In overruling Mosley’s objection to the intoxicants, that “the of including use condition, the district court ex- alcohol, a recovering person’s ability limits plained that “has and alco- drug-free lifestyle.” to maintain a Id. at hol with past, the use of a number of (internal оmitted). quotation 779 This substances,” illegal observed that “[t]here court explained that and Prendergast Bass is a drugs cross-addiction” between and limit “only a district court’s in- discretion alcohol, Mosley’s history and cited sofar as court imposes limitations on health “mental issues.” The court advised speculation the basis of pure assump- Mosley that if she feels that she has tions to the pro- unrelated rehabilitative “things under control” she is when re- Id.; Forde, cess.” accord F.3d at 664 prison, always leased from then “shе can 1223; Grose, States v. United 284 F.3d probation
talk officer and see if (8th Cir.2002) curiam). 911, (per Just those can be modified or ask for a modifi- recently, remarked we that sentenc- cation.” ing landscape changed substantially has challenging Bass,” ruling, district court’s since because that “pre- decision principally relies on two dates Supreme decisions Court’s series of sen- from tencing of this court the 1990s that emphasizing sentencing vacated cases prohibiting crafting the use of court’s discretion in an broаd indi- Forde, Allowing “judicial for some common sentence.” vidualized (internal apply sense,” purported Bass Although review, omitted), refusal its we quotation abuse-of-discretion believe district conclusions that court’s accept reasonably mixing that concluded marijuana per used twice a defendant who like with mental depressant depen years “drug eight week anti- depression health condition of have a dent,” person can and that such may well depressant medications interferе marijua alcohol for tendency to substitute upon rehabilitation release unavailable, functioned if the latter is na Sales, custody. See United States v. like novo review. See Gall more de Cir.2007) (upholding States, U.S. 128 S.Ct. alcohol, prohibition consuming although (2007) 586, 169 (“Although the L.Ed.2d history had no of alcohol abuse defendant correctly that the stated Appeals Court alcohol, did where and offense not involve abuse of review was appropriate standard history of the record showed a substance discretion, that analysis engaged it depression); Amitrip- see also abuse closely de novo review resembled Monograph, Physicians’ tyline Concise presented....”). facts Reference, PDR.net, http://www.pdr. Desk abuse-of-disere- Applying the deferential net/drugpages/eoncisemonograph.aspx? sentencing (last 2012) applies to all that tion standard Feb. concise=119 visited decisions, 52, 128 S.Ct. we con- id. at (identifying one of amitriptyline, the combination substance medications, clude “tricyclic аntidepres- appear- health histories and mental abuse sant,” explaining amitriptyline *6 to are sufficient ing Mosley’s in record ... “[m]ay response enhance alcohol of a imposition the court’s justify district depressants”); Purkey other CNS and the alcohol. prohibiting use of condition Green, 736, 742 n. Fed.Appx. 28 4 history of abus- Mosley had a documented Cir.2001) (taking judicial notice of cocaine, alcohol and crack albeit ing Physicians’ from Desk Refer- information convic- a the offense of than decade before ence). marijuana daily for used tion. She also noted, the court advised Mos- As reported while she no years, ten and the she could modification of ley that seek rea- the district court had use since while supervised release. conditions a mental evalu- skeptical: to be health son court have no reason to doubt We diagnosed in “cannabis abuse” ation 2003 give appropriate such a motion con- would As along “history with of cocaine abuse.” Mosley’s if mental health and sideration Behler, it for the district was reasonable abuse are “under control.” substance recovering drug a Mosley to treat as court user, permit sentencing and our cases a alcohol use of recognize judgment of the district court is recovering person’s ability a
limits
affirmed.
lifestyle.”
drug-free
maintain a
(internal
omitted);
quotations
F.3d
BYE,
Judge, concurring
part
Circuit
Behler,
Crose,
913;
accord
dissenting in part.
that, top
On
did
agree
I
not commit
depressive disorders
diagnosed with
calculаting Mosley’s
error in
procedural
a
attempted
suicide
disagree,
guideline range.
I
how-
advisory
anti-depressant
prescribed
and had been
ever,
majority’s
conclusion the
sentencing.
through
medications from 2003
drinking”
district court did not abuse its
discretion
with “a documented
history
Thus,
supervised
abusing
condition of
imposing
alcohol.”
the only other
using any
from
prohibiting
release
reference that
possibly support
could
bars, taverns,
entering
majority’s
alcohol
or
Mosley’s
and from
is
statement
1998 con-
other
establishments whose
viction for driving while intoxicated.2 But
conviction,
thirteen-year-old,
of income
derived from the sale
isolated
Therefore,
of alcohol.
I respectfully dis- which did not even count toward the com-
sent.
putation
Mosley’s
history
criminal
points, hardly
to a “history
amounts
recently
We
our
observed
cases review-
abusing alcohol,”
any
in the
absence of
ing special
release
indicating pattern
other evidence
of alco-
imposing complete bans on alcohol “have
abuse,
hol
not support
record does
yielded mix
results.” United States
Si-
district court’s finding
has an “al-
mons,
(8th Cir.2010).
past.” Sentencing
coholic
Tr. at 31.
“In general,
upheld
we have
such bans for
prob-
defendants with
concluding
justifies
substance-abuse
the record
a total
bans,
alcohol,
lems.” Id. We have reversed
including
such
ban on
entering
ban on
however,
“history
taverns,
defendants whose
or
majority
bars
also
relies
crime of
did not
support
Mosley’s
conviction
com-
history of substance abuse. And
plete
surе,
ban on alcohol.” Id. The record here
to be
using
admitted to
mari-
indicates
did
play
juana daily
a role in
years,
ten
crime
conviction. The district
and to using
eight
crack cocaine for
acknowledged
by stating
as much
it
months in 1990.
last reported
had no
information “alcohol played
marijuana, however,
use of
was over a
role in [Mosley’s]
Sentencing
offense.”
Tr.
ago
decade
and her last use of
co-
crack
at 27. The question thus becomes whether
twenty years
caine was ovеr
Mosley’s history justifies
sentencing
hearing in this
Despite
case.
prohibition against
court’s
of alco-
temporal
gap,
concludes
hol
and the
of bars or taverns.
*7
I
reasonably prohibit
could
say
cannot
it
does.
from using
alcohol and
bars
taverns
purpose
for the
of ensur-
The majority
first asserts
“doc-
ing
be drug-free.
continues to
history
umented
of abusing alcohol”
weighs in
of upholding
favor
the district
Citing
Behler,
to United
v.
States
(8th
ante,
court’s total ban on alcohol.
Cir.1999),
See
F.3d
the majority states
p.
recоrd, however,
591. The
shows other-
justified
the district court was
in imposing
wise. The record
exactly
contains
two ref-
alcohol,
a total ban on
though Mosley
even
alcohol,
erences
to
neither
which stopped using
illegal substances
over
history
amounts to a
ago.
alcohol abuse.
decade
majority
But as the
itself
The
notes,
record shows
described her-
the evidence before the district
self as a “social drinker
for
occa-
court
Behler was different from the
only”
sions
Behler,
and stated she first consumed record evidence in this case.
¶
age
PSR,
alcohol at
twenty five.
sentencing
the district court received a
Surely,
majority
is
equating
“social
probation
recommendation
from
offi-
PSR,
2. According
to the
vehicle was
alcohol and failed the administered field so-
stopped May
on
tests,
after
failed
briety
but
refused
submit to chemical
¶
yield
to law enforcement.
32. The com-
testing.
Id.
plaint
she
consuming
indicated
admitted to
control,
always
under
she can
talk to her
would
cеr, indicating the use
alcohol
if
ability
see
can be
probation
“to maintain
officer and
those
the defendant’s
limit
More-
Id. at 779.
lifestyle.”
or ask for modification. She
drug-free
modified
issues,
over,
probation officer’s recommenda-
health
I
has had mental
also
National
data
was based on
carefully
tion
that she
consider
think
should
Abuse, explaining “the
Drug
on
Institute
challenge
or not to
those condi-
whether
alcohol,
intoxicants, including
use of
I think
would do much better
tions.
she
ability
recovering persоn’s
limits
if
has
supervision
on
she
those additional
lifestyle.”
The
Id.
drug-free
maintain
given
history.
available
resources
use of al-
“any
further established
record
Sentencing Tr. at 31.
with the treatment
is inconsistent
cohol
recov-
of most substance abuse
philosophy
by
explanation given
the district
Based on
nationwide.” Id.
ery programs
precisely
type
pure specula-
is
court, we
the district
the evidence before
tion we must not tolerate. The record
alcohol, noting the
upheld
total ban
the cоurt contained no
es-
evidence
necessary
it
court had before
district
tablishing
possible
effect
alcohol on
any alco-
determining
foundation
person
repeating
who—it bears
—had
would
the defendant’s reha-
hol use
hinder
lifestyle
drug-free
years.
maintained a
process.”
bilitation
linking
The record contained no evidence
present
is
here.
No such foundation
Mosley’s specific
alcohol to
mental health
Rather,
to im-
the district court’s decision
Yet, despite the lack of
evi-
issues.
such
a total ban on alcohol is “based
pose
dence,
majority
concludes the district
assumption.”
Com-
nothing
than
reasonably
could
determine a total
a total ban on alcohol
pare
(upholding
id.
necessary.
on alcohol
ban
where the evidence before the
Relying on our recent decision in United
defendant was
court established the
Forde,
Cir.
States
Bass,
with United States
dependent),
2012),
it is
asserts
within the
(8th Cir.1997) (re-
1223-24
sentencing
recognize
court’s discretion “to
a total
alcohol where there
versing
ban on
recovering
use of
limits a
that ‘the
the defendant was
was no evidence
ability
drug-free
maintain a
person’s
“simply
district court
dependent and the
” Ante,
Forde,
lifestyle.’
(quoting
would
assume[d]
defendant]
[the
1224).
however, mari-
replace
alcohol for
matter
course
distinguishable.
factually
Unlike the rec-
by
As
juana”).
articulated
*8
here,
the
ord
record
the
to
sentencing,
at
the
decision
court’s
the
in Forde established
defendant
based
impose the total ban on alсohol was
dependent.
drug
nograph, Physician’s Desk
explain possible effect of alcohol on persons taking amitriptyline3, one of Mos- America, UNITED STATES ante, ley’s prescribed medications. See Plaintiff-Appellee, knowledge 591-92. While such may well within physician’s be the realms of a com- Judy YEUNG, Yeung, Mui Wan a/k/a sense, highly I qualifies mon doubt it as Defendant-Appellant. “judicial Again, common sense.” the rec- no No. linking ord contains evidence 10-10381. Mosley’s аmitriptyline medication and the of Appeals, States Court district court’s reliance on mental Ninth Circuit. health as a for prohibiting basis her from Argued Oct. and Submitted 2011. using alcohol and bars or taverns pure speculation. is therefore Filed *9 Feb.
Finally, omits the fact Mos-
ley’s standard of supervised re-
3. While the general PSR indicates been prescriptions, has list of current prescribed anti-depressant including prescription mg Amitrip- medications since ¶ specific it does not list tyline. Nothing medications. Id. at 43. in the indi- PSR PSR, ¶ Rather, provides anti-depressant. PSR Amitriptyline cates is an