Submitted: February 6, 2017
from United States District Court for the Western District of
Missouri - Springfield
RILEY, Chief Judge, SMITH and BENTON, Circuit Judges.
T. Bacon pled guilty without a written plea agreement to
being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g)(1). The district court sentenced Bacon
to 60 months imprisonment and a three-year term of supervised
release, a sentence of imprisonment that is twice the upper
limit of Bacon's advisory United States Sentencing
Guidelines (U.S.S.G. or Guidelines) range. Bacon appeals this
sentence, and, having appellate jurisdiction under 28 U.S.C.
§ 1291, we affirm.
April 2, 2014, Bacon, in an agitated state, entered a
woman's home and demanded she call 911. When police
arrived, Bacon opened the front door holding a shotgun and
the responding officer, "believ[ing] the shotgun was . .
. readily capable of lethal force, " took "a
position of cover." The officer re-advanced toward the
woman's home and found Bacon running out of the
residence, unarmed, and the officer then apprehended Bacon.
Responding officers subsequently searched the woman's
home and discovered several firearms and ammunition. A grand
jury returned an indictment charging Bacon with being a felon
in possession of a firearm. Bacon initially filed notice of
his intention to rely on an insanity defense, but
subsequently changed his plea, without a written plea
agreement, to guilty.
Bacon's sentencing held March 31, 2016, the district
court applied a two-level enhancement because the offense
involved between three and seven firearms pursuant to
U.S.S.G. § 2K2.1(b)(1), a two-level reduction for
acceptance of responsibility pursuant to U.S.S.G. §
3E1.1(a), and a one-level reduction for assisting authorities
in the investigation pursuant to U.S.S.G. § 3E1.1(b),
resulting in a total offense level of 13. With a criminal
history category of IV, Bacon's advisory Guidelines range
was 24 to 30 months imprisonment. The district court
expressly considered the sentencing factors under 18 U.S.C.
§ 3553(a), namely Bacon's history and
characteristics, Bacon's extensive criminal history-which
included convictions for receiving stolen property, assault
and battery, destruction of property, forgery, and driving
while intoxicated-the need to promote respect for the law,
and "the need to protect the public from further crimes
of [Bacon]." The district court then varied upward and
sentenced Bacon to 60 months imprisonment followed by three
years of supervised release.
contends this "substantial" upward variance is
unjustified and substantively unreasonable. In reviewing the
substantive reasonableness of a sentence, we apply "a
deferential abuse-of-discretion standard." Gall v.
United States, 552 U.S. 38, 41 (2007). According to
Bacon, the extent of the upward variance is unwarranted
because the district court based it on factors already
accounted for in Bacon's Guidelines sentencing range.
Bacon relies on United States v. Wiley, 509 F.3d 474
(8th Cir. 2007), in which we determined a variance of nearly
twice the upper limit of the defendant's advisory
Guidelines range was unreasonable because the district court
relied primarily on its concerns for just punishment and
deterrence given the defendant's criminal history,
factors already accounted for in calculating the Guidelines
range. Id. at 478-79. We note Wiley was
decided four days before Gall, and under
Gall, "[w]e must 'give due deference to
the District Court's reasoned and reasonable decision
that the § 3553(a) factors, on the whole, justified the
sentence.'" United States v. Cole, 721 F.3d
1016, 1024 (8th Cir. 2013) (alteration in original) (quoting
Gall, 552 U.S. at 59-60).
we must consider "the extent of any variance from the
Guidelines range" in evaluating whether a district court
abused its discretion in sentencing, Gall, 552 U.S.
at 51, "[w]e may not require
'"extraordinary" circumstances to justify a
sentence outside the Guidelines' and are prohibited from
'the use of a rigid mathematical formula that uses the
percentage of a departure as the standard for determining the
strength of the justifications required for a specific
sentence.'" United States v. Feemster, 572
F.3d 455, 462 (8th Cir. 2009) (en banc) (quoting
Gall, 552 U.S. at 47).
the district court carefully considered whether Bacon had
made an effort to improve his respect for the law given his
criminal history, whether a sentence of imprisonment within
the advisory Guidelines range would promote respect for the
law, and whether a sentence of imprisonment within the
advisory Guidelines range would adequately protect the public
from Bacon's future offenses. These are all permissible
factors to consider when varying from the advisory Guidelines
sentence. See 18 U.S.C. § 3553(a). The district
court did not abuse its discretion in sentencing Bacon.
judgment is affirmed.
The Honorable Roseann A. Ketchmark,
United States District Judge for the Western District of