UNITED STATES of America, Plaintiff-Appellee v. Steven S. COWAN, Defendant-Appellant.
No. 12-1337.
United States Court of Appeals, Eighth Circuit.
Submitted: Sept. 18, 2012. Filed: Oct. 12, 2012.
706
court should not have varied upward to such an extent based on Overbey‘s conduct toward his son Ryan because the Guidelines already accounted for that conduct through the obstruction of justice enhancement.
Overbey has an extensive criminal history. Between 1987, when Overbey was eighteen years old, and the instant offenses, Overbey had been convicted of sixteen different crimes. Eleven of these offenses, including five felonies, did not count toward Overbey‘s Guidelines calculation. Overbey served some short periods in jail, received suspended sentences, and was placed on probation numerous times. The district court did not clearly err in finding Overbey‘s Guidelines calculation understated his criminal history and he had been “in and out of prison all of [his] adult life.” The district court did not abuse its discretion in varying upward on either ground. See United States v. Barrett, 552 F.3d 724, 726 (8th Cir.2009) (“Section 3553(a) allows courts to vary upward based on an underrepresented criminal history or recidivism.“).
Nor did the district court abuse its discretion in basing the variance, in part, on Overbey‘s conduct toward his son. “[W]e previously have allowed variances based on factors already taken into account by the advisory [G]uidelines,’ where the Guidelines do not fully account for those factors, or ‘when a district court applies broader § 3553(a) considerations in granting the variance.‘” United States v. Richart, 662 F.3d 1037, 1052 (8th Cir.2011) (quoting United States v. Jones, 509 F.3d 911, 914 (8th Cir.2007)). Overbey instructed Ryan to dispose of the rifle used in the robbery and pressured Ryan not to testify. The district court based the variance on “broader
III. CONCLUSION
Because we conclude the district court did not err or abuse its discretion in sentencing Overbey to 240 months imprisonment, we affirm.
Bruce E. Clark, Asst. U.S. Atty., Kansas City, MO (David M. Ketchmark, Acting U.S. Atty., on the brief), for appellee.
Before GRUENDER, ARNOLD, and SHEPHERD, Circuit Judges.
GRUENDER, Circuit Judge:
Steven Cowan pled guilty to being a felon in possession of a firearm in violation of
On December 2, 2010, officers from the Butler, Missouri Police Department learned that Cowan had contacted a confidential informant (“CI“) to inquire if the CI was interested in purchasing a .380-caliber handgun. The CI made two recorded phone calls to Cowan to arrange the purchase of the gun. Police provided the CI with $200 of identifiable currency, equipped the CI with a recording device, and sent the CI to Cowan‘s home to purchase the gun. After the purchase, officers saw Cowan leave his home, and they arrested him during a traffic stop. The officers found in Cowan‘s pocket the currency that the CI had been given to purchase the gun. Further investigation revealed that Cowan had prior felony convictions and that the gun had been transported in interstate commerce.
Cowan pled guilty to being a felon in possession of a firearm on July 7, 2011, pursuant to a written plea agreement. The parties agreed that
At sentencing, the parties disputed whether Cowan‘s Missouri conviction for attempted escape from custody should be considered a crime of violence within the meaning of
On appeal, Cowan for the first time raises the argument that the residual clause in
Before an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Pirani, 406 F.3d at 550 (quoting Johnson v. United States, 520 U.S. 461, 466-67 (1997)).
The district court here committed no error, much less plain error, because the Supreme Court twice has rejected arguments that a nearly identically worded residual clause in the ACCA was unconstitutionally vague. While Cowan relies on several dissenting opinions that contend that the ACCA‘s residual clause is unconstitutionally vague, see Derby v. United States, 564 U.S. —, 131 S.Ct. 2858, 2858, 180 L.Ed.2d 904 (2011) (Scalia, J., dissenting from denial of certiorari); Sykes v. United States, 564 U.S. —, 131 S.Ct. 2267, 2284, 180 L.Ed.2d 60 (2011) (Scalia, J., dissenting); James v. United States, 550 U.S. 192, 227-28, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) (Scalia, J., dissenting), the Supreme Court has rejected this argument. In James, for example, the Court expressly considered the argument that the Court‘s decision “leav[es] up in the air for judicial determination how much risk of physical injury each crime presents” and “leaves the lower courts and those subject to the law to sail upon a sea of doubt.” 550 U.S. at 228. In rejecting the vagueness argument, the Court explained:
While ACCA requires judges to make sometimes difficult evaluations of the risks posed by different offenses, we are not persuaded by Justice SCALIA‘s suggestion ... that the residual provision is unconstitutionally vague. The statutory requirement that an unenumerated crime “otherwise involv[e] conduct that presents a serious potential risk of physical injury to another” is not so indefinite as to prevent an ordinary person from understanding what conduct it prohibits.
Id. at 210 n. 6 (alteration in original) (internal citation omitted); accord Sykes, 564 U.S. —, 131 S.Ct. at 2277 (“Although this approach may at times be more difficult for courts to implement, it is within congressional power to enact.” (citing James, 550 U.S. at 210 n. 6)); see also United States v. Childs, 403 F.3d 970, 972 (8th Cir.2005) (“In addition, [defendant] argues that
As we have explained, the “definition of a predicate ‘crime of violence’ [in
For the reasons stated above, we affirm.