United States of America v. Thomas Jerel Grace
No. 17-1572
United States Court of Appeals for the Eighth Circuit
June 20, 2018
Submitted: April 9, 2018
Aрpeal from United States District Court for the District of North Dakota - Bismarck
Before COLLOTON, SHEPHERD, and STRAS, Circuit Judges.
On December 6, 2015, Thomas Jerel Grace was driving down North Dakota Highway 23 within the Fort Berthold Indian Reservation when he crossed into oncoming traffic and crashed into the car of 18-year-old Dariann Tveter, who died at the scene. Grace‘s blood alcohol lеvel was .211 percent.
Grace pled guilty to one count of involuntary manslaughter under
“[W]e review a defendant‘s sentence under a deferential abuse-of-discretion standard.” United States v. Boykin, 850 F.3d 985, 988 (8th Cir. 2017) (per curiam). “A district court abuses its discretion when it (1) fails to consider a relevant fаctor 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 errоr of judgment.” Id. (internal quotation marks omitted). “[I]t will be the unusual case when we reverse a district court sentence аs substantively unreasonable.” Id. (alteration in original) (internal
Grace first argues the district court abused its discretion by giving significant weight to an improper factor: his previous DUI conviction. He also claims the court committed a clear error of judgment in weighing that factor. Indeed, the driving factor in the court‘s decision to vary upward was Grace‘s conviction for а DUI that occurred just four months prior to the fatal accident.
Although Grace‘s previous conviction was already taken into account in determining his criminal history category, a district court may vary “based on factors already taken into account by the advisory guidelines, where the Guidelines do not fully account for those fаctors, or when a district court applies broader
Here, the district court determined the Guidelines did not fully account for Grace‘s prior DUI conviction. Cf. Richart, 662 F.3d at 1053 (affirming upward variance where the “Guidelines d[id] not fully account for the nаture, circumstances, and seriousness of [the defendant‘s] offense“). Grace‘s prior DUI occurred on the very same highway only four months before the accident. In both instances, Grace was highly intoxicated, with a blood alcohol level of over .21 percent. Grace‘s repeated behavior within
Grace next argues the district court abused its discretion by giving significant weight to an inapplicable state statute. In finding the Sentencing Guidelines were too lenient for Grace‘s offense, the district court noted that, by comparison, Grace would be subjeсt to a 10-year mandatory minimum in North Dakota state court.
As an initial matter, we note that in his opening brief, Grace argues the state statute is inapplicable to the facts in his case. Later, in his reply brief, Grace argues the district court erred in considering sentencing disparities between defendants in federal and state courts. See United States v. Nash, 627 F.3d 693, 697 (8th Cir. 2010) (finding “the district court would have erred to consider potential federal/state sentencing disparities“). Beсause Grace‘s latter argument was not raised in his opening brief, it is not before us on appeal. See United States v. Rice, 699 F.3d 1043, 1050 (8th Cir. 2012) (“Issues not raised in a party‘s opening brief are waived.“).
We conclude the district court did not give significant weight to the state statute in sentencing Grace. Although the court noted in passing the potential sentence under North Dаkota law, the court specifically stated that Grace‘s previous DUI conviction and his high blood alcohol content were what “swayed” the court to vary upward. And, after imposing the sentence, the district court furthеr explained its analysis under the
We therefore affirm the district court‘s sentence.