Submitted: February 19, 2016
Appeal from United States District Court for the Northern District of Iowa, Waterloo
Before BENTON, BRIGHT, and BYE, Circuit Judges.
In this appeal, following remand for resentencing without consideration of certain disputed facts, see United States v. Webster, 788 F.3d 891 (8th Cir. 2015), Aaron Webster challenges the amended judgment sentencing him to the statutory maximum of 120 months in prison for possessing an unregistered sawed-off shotgun. The district court imposed the sentence at the resentencing hearing, after entertaining argument from both sides, and electing to depart or vary upward from the Guidelines range of 70 to 87 months. Counsel moves to withdraw under Anders v. California, 386 U.S. 738 (1967), and argues that the sentence is substantively unreasonable. In a pro se supplemental brief, Webster additionally argues that the district court erred in applying a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B). Having jurisdiction under 28 U.S.C. § 1291, this court grants counsel's motion to withdraw and affirms the amended judgment.
Webster's challenge to the section 2K2.1(b)(6)(B) enhancement is reviewed only for plain error because he did not object below, see United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005) (en banc). There was no error, plain or otherwise, because unchallenged facts in the presentence report supported the enhancement, see U.S.S.G. § 2K2.1(b)(6)(B) (increase by four levels if defendant used or possessed firearm or ammunition in connection with another felony offense) & (comment. (n. 14(C))) (defining "another felony offense").
Webster's challenge to the substantive reasonableness of his sentence is reviewed under a deferential abuse-of-discretion standard. See United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc). As Webster notes, the district court imposed the same sentence on remand as Webster received in the first sentencing, and this court identified in the first appeal several mitigating sentencing factors that indicated a reasonable probability Webster would have received a shorter sentence but for the sentencing error. See Webster, 788 F.3d at 893. However, the fact that this court "'might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.'" Feemster, 572 F.3d at 462 (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). While "substantive review exists, in substantial part, to correct sentences that are based on unreasonable weighing decisions, " United States v. Kane, 639 F.3d 1121, 1136 (8th Cir. 2011) (quotation omitted), this court "must give due deference to the district court's decision that the § 3553(a) factors, on a whole, justify the extent of the variance." Feemster, 572 F.3d at 461-62 (quoting Gall, 552 U.S. at 51). In reimposing the 120-month sentence, the district court commented in part that the Guidelines did not adequately take into account the seriousness of the offense: Webster had discharged the subject firearm into a fleeing vehicle, narrowly missing the driver. See U.S.S.G. § 5K2.6 (stating that court may depart if weapon was used in commission of offense; extent of increase depends on dangerousness of weapon, manner it was used, and extent its use endangered others; discharge of firearm may warrant "substantial sentence increase"). In short, after careful review, this court cannot say that this is the "unusual case" where the district court's sentence will be reversed as substantively unreasonable. See Feemster, 572 F.3d at 464.
Finally, review of the record pursuant to Penson v. Ohio, 488 U.S. 75 (1988), reveals no nonfrivolous issues for appeal. The sentence is affirmed, and counsel is granted leave to withdraw.
BRIGHT, Circuit Judge, dissenting.
On remand, the district court imposed the same sentence that was originally imposed without adequately explaining how a sentence of 120 months was still appropriate in the absence of the improper facts the district court emphasized in choosing the original sentence. Because we require district courts to give us better insight into their sentencing decisions to allow for meaningful appellate review and the imposition of a 120-month sentence may be substantively unreasonable, I would vacate Webster's sentence and remand for resentencing. I therefore respectfully dissent.
In United States v. Webster, 788 F.3d 891 (8th Cir. 2015) [hereinafter Webster I], we remanded this case for resentencing. We concluded in a clear, well-written opinion that the district court committed plain error by basing Webster's original sentence on objected-to facts and repeatedly referring to this unproven conduct as "aggravated." Id. at 893. In the absence of this evidence, we concluded there was "a reasonable probability that[, ] but for the unproved allegations, Webster would have received a shorter sentence." Id. To highlight why a shorter sentence may be appropriate, we noted Webster's young age, education level, and limited criminal record. Id.
On remand, the district court admitted confusion surrounding our remand for resentencing. (Resent'g Tr. 4). In summarizing our decision, the district court suggested the reason for our remand was she "might not have made [herself] clear as to the bases [for the original sentence]." (Id.) On the contrary, we did not conclude the reasons given by the district court for selecting its sentence lacked clarity. Instead, we explicitly held the district court committed plain error by selecting a sentence "based [on] . . . objected-to facts." Webster I, 788 F.3d at 892.
On remand, the district court did not acknowledge our express holding. In fact, not once in the resentencing transcript did the district court discuss the absence of the objected-to facts in an attempt to explain its new sentence. Instead, despite the omission of the "aggravated conduct" from the record-the main reason provided for an upward variance at the original sentencing hearing-the district court imposed the exact same sentence. (Resent'g Tr. 12-17). Thus the district court imposed the same sentence without acknowledging our holding or providing reasons why the same sentence was appropriate.
We have repeatedly held that a remand for resentencing is warranted when a district court fails to "adequately explain the chosen sentence to allow for meaningful appellate review." United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) [hereinafter Feemster II] (en banc) (quoting Gall v. United States, 552 U.S. 38, 50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). To adequately explain a sentence, the district court must "explain its reasons for the sentence . . . with some degree of specificity." United States v. Feemster, 435 F.3d 881, 884 (8th Cir. 2006) [hereinafter Feemster I]. And while a district court has the discretion to impose the same sentence on remand, the district court's discretion is still limited by the requirement ...