Submitted: September 18, 2017
from United States District Court for the Western District of
Missouri - Kansas City
COLLOTON, BENTON, and KELLY, Circuit Judges.
W. Stone pleaded guilty to being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). The
district court adopted the uncontested calculations of
Stone's offense level and criminal history in the
presentence report, which resulted in an advisory Sentencing
Guidelines range of 27-33 months. Citing a number of factors,
the court sentenced Stone to an above-Guidelines sentence of
60 months of imprisonment. Stone appeals, arguing the
district court erred in imposing an upward variance.
"review all sentences-whether inside, just outside, or
significantly outside the Guidelines range-under a
deferential abuse-of-discretion standard." Gall v.
United States, 552 U.S. 38, 41 (2007). Stone argues that
the district court abused its discretion in two ways: (1) by
considering improper factors in determining his sentence; and
(2) by engaging in an unreasonable weighing of the statutory
sentencing factors listed in 18 U.S.C. § 3553(a),
leading to an unjustifiably excessive sentence.
alleges the district court considered improper factors when,
according to Stone, it declared "categorical rules"
that required imposing longer sentences for federal, rather
than state, crimes and imposing longer sentences for a
greater history of recidivism. Such a reading of the
transcript, however, takes out of context two statements the
court made during a longer sentencing colloquy. Read in
context, it is apparent that the district court was not
relying on categorical rules, but instead was making
individualized observations about Stone's past conduct
and the need for deterrence in light of Stone's history
and personal characteristics. The "need for
deterrence" is an authorized-not an improper-statutory
factor, and the district court did not err in taking it into
consideration. See 18 U.S.C. § 3553(a)(2)(B).
we are unpersuaded by Stone's contention that the
district court improperly weighed the § 3553(a) factors.
When varying from the Guidelines, "[t]he district court
must 'consider the extent of the deviation and ensure
that the justification is sufficiently compelling to support
the degree of the variance.'" United States v.
Martinez, 821 F.3d 984, 989 (8th Cir. 2016) (quoting
United States v. Feemster, 572 F.3d 455, 461 (8th
Cir. 2009) (en banc)). However, "'extraordinary
circumstances' are not needed to justify a sentence
outside the guideline range, " even if the district
court is varying upward. United States v.
Hummingbird, 743 F.3d 636, 638 (8th Cir. 2014).
"The district court has wide latitude to weigh the
§ 3553(a) factors in each case and assign some factors
greater weight than others in determining an appropriate
sentence." United States v. Bridges, 569 F.3d
374, 379 (8th Cir. 2009).
the district court specifically addressed a number of the
§ 3553(a) factors. First, it looked at Stone's
history and characteristics-giving specific attention to the
his employment history and lack of success when previously
placed on supervision. The court then discussed the need to
protect the public from further crimes, which the court
described as "something that I think is very real"
with respect to Stone. And, as noted, the court addressed the
need for deterrence. The district court also expressly
acknowledged that Stone had accepted responsibility for his
offense and was honest with the court, which
"help[ed]" him from receiving an even longer
sentence. These considerations are adequate to support an
upward variance in this case. See Gall, 552 U.S. at
51 ("[We] must give due deference to the district
court's decision that the § 3553(a) factors, on a
whole, justify the extent of the variance.").
judgment of the district court is affirmed.
The Honorable Greg Kays, Chief Judge,
United States District Court for the Western District of
The government argues that Stone
alleges "procedural" as well as
"substantive" errors, and that the unobjected-to
procedural errors should be reviewed under the
even-more-deferential plain error standard. Because we
conclude Stone is not entitled to relief under either
standard, we need not decide which standard of review to
apply. See United States v. Kouangvan, 844 F.3d 996,
999-1000 (8th Cir. 2017) (recognizing "apparent
conflict" between cases that categorize consideration of
improper factor as a procedural error and cases categorizing
it as a challenge to substantive reasonableness, but