Submitted: May 8, 2017
from United States District Court for the District of South
Dakota - Pierre
SMITH, Chief Judge, COLLOTON and KELLY, Circuit Judges.
Robert McGhee pleaded guilty to assault resulting in serious
bodily injury in violation of 18 U.S.C. §§ 1153 and
113(a)(6), and was sentenced to 71 months of imprisonment and
three years of supervised release. He began his first term of
supervised release on January 30, 2013. On January 26, 2015,
McGhee's probation officer filed a petition to revoke
McGhee's supervised release, alleging that he committed
four violations of his release conditions: failing to reside
and participate in a residential reentry center; engaging in
conduct constituting simple assault in violation of tribal
law; engaging in conduct constituting aggravated assault in
violation of tribal law; and consuming alcoholic beverages.
He admitted to the first and last of these, and the other two
were dismissed. He was sentenced to nine months of
imprisonment and eighteen months of supervised release.
second term of supervised release began on February 24, 2016.
On June 28, 2016, his probation officer filed a petition to
revoke supervised release, alleging that McGhee failed to
notify her ten days prior to changing his residence. McGhee
admitted the violation. The district court concluded the
advisory Guidelines range for the violation was six to twelve
months of prison, but sentenced McGhee to eighteen months of
imprisonment and eighteen months of supervised release.
McGhee appeals, arguing that the district court committed
procedural error in imposing his sentence and that the
sentence is substantively unreasonable.
review a district court's revocation sentencing decisions
using the same standards that we apply to initial sentencing
decisions." United States v. Miller, 557 F.3d
910, 915-16 (8th Cir. 2009). Under this standard, "we
must first ensure that the court committed no significant
procedural error, such as improperly calculating the sentence
under the Guidelines, failing to consider relevant 18 U.S.C.
§ 3553(a) sentencing factors, imposing a sentence based
on clearly erroneous facts, or failing to adequately explain
the reasons for the sentence imposed." Id. at
916. Where, as here, the defendant did not object to
procedural sentencing errors before the district court, they
"are forfeited, and therefore may be reviewed only for
plain error." Id.
argues that the district court committed procedural error
because it failed to consider the sentencing factors set
forth in 18 U.S.C. § 3553(a) as required by 18 U.S.C.
§ 3583(e). McGhee acknowledges that during the
sentencing hearing, the district court stated: "I am
required to take into account not only the sentencing
guidelines but the statutory factors set forth at 18 United
States Code § 3553, and I am doing so." McGhee
contends this citation was insufficient, however, because the
district court did not "actually identify what any of
these factors were or on which factors it relied upon for
"[a] district court need not mechanically list every
§ 3553(a) consideration when sentencing a defendant upon
revocation of supervised release." United States v.
White Face, 383 F.3d 733, 740 (8th Cir. 2004). Rather,
"[a]ll that is required is evidence that the court has
considered the relevant matters and that some reason be
stated for its decision." Id. "If a
sentencing judge references some of the considerations
contained in § 3553(a), we are ordinarily satisfied that
the district court 'was aware of the entire contents of
the relevant statute.'" Id. (quoting
United States v. Adams, 104 F.3d 1028, 1031 (8th
Cir. 1997)). Here, the record demonstrates that the district
court was aware of its obligation to consider the §
3553(a) factors and that it actually did consider some of
these factors, including the nature and circumstances of the
offense, McGhee's history and characteristics, and the
advisory Guidelines range. See id. Accordingly, the
district court did not commit plain procedural sentencing
we are satisfied that the sentencing decision is free of
significant procedural error, we consider the substantive
reasonableness of the length of the sentence under an
abuse-of-discretion standard." Miller, 557 F.3d
at 916. "A court abuses its discretion if it fails to
consider a relevant factor that should have received
significant weight; gives significant weight to an improper
or irrelevant factor; or considers only the appropriate
factors but in weighing those factors commits a clear error
of judgment." Id. at 917 (alterations and
quotation marks omitted) (quoting United States v.
Mousseau, 517 F.3d 1044, 1048 (8th Cir. 2008)).
first argues that his revocation sentence is substantively
unreasonable because the district court improperly gave
significant weight to the two dismissed alleged violations of
his first term of supervised release when it stated:
"[McGhee] . . . call[ed] U.S. Probation to report that
he had been arrested in Lower Brule for assault and had been
so intoxicated that he didn't know what happened."
As a general matter, however, when imposing a revocation
sentence, a district court may consider conduct underlying an
arrest even where the related charges have been dismissed,
subject only to the same procedural limitations that apply to
other types of information the court may consider in imposing
a sentence. United States v. White, 840 F.3d 550,
553 (8th Cir. 2016) (per curiam). McGhee gives no reason why
the conduct underlying his dismissed alleged violations was
improper or irrelevant for the district court to consider
here. Accordingly, we conclude the district court did not
give significant weight to an improper or irrelevant factor.
next argues the district court failed to consider factors
that should have received significant weight-namely, the
relatively minor nature of his violation and his
"overall improvement" on supervised release. McGhee
points out that during his second term of supervised release,
there were no reports of him drinking, committing crimes, or
causing problems in the community; he called his probation
officer while on supervised release; and he had found
employment. However, the court did discuss these
considerations with McGhee's counsel at the revocation
sentencing hearing, and referenced some of them directly when
explaining its reasons for the revocation sentence it
imposed. Accordingly, the district court did not fail to
consider relevant factors that should have received
significant weight. See United States v. Miles, 499
F.3d 906, 909 (8th Cir. 2007) (explaining that the district
court did not fail to consider relevant factors where the
record demonstrated it heard argument from the parties on
those factors, even though it did not provide a "lengthy
explanation" addressing each one).
McGhee identifies no other error in the imposition of his
revocation sentence, the judgment ...