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United States v. Keatings

United States Court of Appeals, Eighth Circuit

June 3, 2015

United States of America, Plaintiff - Appellee
v.
Kenneth Keatings, Defendant - Appellant

Submitted November 14, 2014.

Page 1198

Appeal from United States District Court for the Western District of Missouri - Kansas City.

Before BYE, SHEPHERD, and KELLY, Circuit Judges.

OPINION

Page 1199

SHEPHERD, Circuit Judge.

The district court[1] gave Kenneth Keatings a choice for his felon in possession of a firearm conviction--a year and a day in prison or five years on probation. The probationary sentence came with a caveat; if he violated the terms of his probation, he could face ten years in prison, the statutory maximum for his crime. Keatings chose the probation. Just four months after receiving this sentence, Keatings was back in front of the district court accused of probation violations--the use of cocaine and the consumption of alcohol. The court imposed the threatened ten-year sentence. Keatings argues the district court committed plain error or an abuse of discretion when it imposed the ten-year sentence. We affirm.

I.

Keatings initially pled guilty to being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). He faced up to ten years in prison. See 18 U.S.C. § 924(a)(2). Keatings's Sentencing Guidelines range was 30-37 months. At his initial sentencing, Keatings's attorney stressed that although Keatings's criminal history was a Category 3, his last felony was over 18 years old. Also, Keatings was cooperative with the investigation that led to his conviction, had no pretrial release violations except one positive test for marijuana that was early in his release, and had maintained

Page 1200

an ongoing, full-time job in which his employer reported that he was an outstanding employee. Keatings's attorney pled for the imposition of a probationary sentence, stating, " He will follow any conditions that the Court makes him follow or lays down as an order, and give him the opportunity to complete it, and if he doesn't, the Court always has repercussions that he is crystal clear aware of if he's not law-abiding." (Sent. Tr. 8.) Keatings also pled his case directly to the court, promising " if you give me a chance, I'll show you I'll be a better man and you'll never see me again." (Sent. Tr. 9.) The district court then reviewed Keatings's prior criminal history and noted that on several occasions he had commited probation and parole violations that resulted in additional prison time. The court then asked Keatings, " Why should I consider you'll do any better now if I put you on probation like you asked?" (Sent. Tr. 15.) Keatings responded that he was trying to get his life in order, continue his job, and take care of his home. The following colloquy then occurred:

The Court: Mr. Keatings, here's what I'm thinking, I'll send you to prison today for a year and a day, or I'll put you on probation for five years, with the understanding, I'm going to give you some pretty strict conditions --
Defendant Keatings: Yes, sir.
The Court: - - if you violate a condition, then I'm reserving the right to revoke your probation, and the statutory maximum is ten years. I'm reserving the right to send you to prison for ten years if you break this probation.
Defendant Keatings: Yes, sir.
The Court: What do you ...

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