United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 10-1127
___________
Tony Ray Ferguson, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
United States of America, *
*
Appellee. *
___________
Submitted: September 24, 2010
Filed: October 29, 2010
___________
Before GRUENDER, ARNOLD, and SHEPHERD, Circuit Judges.
___________
SHEPHERD, Circuit Judge.
Tony Ray Ferguson appeals from his sentence of 60 months imprisonment
imposed after his conviction for possession of a prohibited object in prison. See 18
U.S.C. § 1791(a)(2). He contends that the district court1 committed multiple
procedural errors, abused its discretion by imposing a sentence 48 months above his
Sentencing Guidelines range, and violated the Eighth Amendment in imposing a 60
month sentence for a minor possession conviction. We affirm.
1
The Honorable Brian S. Miller, United States District Judge for the Eastern
District of Arkansas.
I.
Since April 2006, Ferguson has been a federal prisoner at the Federal
Correctional Complex in Forrest City, Arkansas (“FCC-Forrest City”). On February
22, 2009, prison staff observed Ferguson remove something from his pocket while he
was waiting to leave the visitation room. When the prison staff approached Ferguson,
he dropped two bundles onto the ground. One bundle contained 12 grams of
marijuana, and the other contained 16 grams of tobacco. Ferguson pled guilty to a
one-count indictment for possession of a prohibited object while in prison, in violation
of 18 U.S.C. § 1791(a)(2).
At the sentencing hearing, the district court determined that Ferguson had an
advisory Sentencing Guidelines range of 6 to 12 months imprisonment. The district
court then heard testimony from Agent Eric Thompson, a government witness and a
special investigative agent with the Federal Bureau of Prisons at FCC-Forrest City.
Agent Thompson testified that possession of contraband was a serious problem at
FCC-Forrest City. However, because the quantities possessed were generally small,
possession had traditionally been punished internally with little deterrent effect.
Agent Thompson had asked the United States Attorney to begin prosecuting
possession of contraband, and he noted that the resulting federal indictments had
produced a drop in contraband possession. Agent Thompson also stated that of these
recent indictments, Ferguson’s was the first drug case to proceed to sentencing.
Because Ferguson was the first person sentenced during the new enforcement efforts,
the government asked the district court to use his sentence to “send a loud, clear
message.”
The district court accepted the government’s argument that Ferguson’s sentence
had heightened deterrent value. It stated:
-2-
[T]his is the test case. Now, it’s a terrible thing to be made to be the
example. Mr. Ferguson, it’s terrible. It’s terrible to be the Gilbert
Arenas, he was the basketball player for the Washington Wizards who
had guns in the locker room just recently, so he’s been suspended
without pay. He had a 110-million-dollar contract that’s going to be
void because he had a gun.
It’s terrible to be the Michael Vick who fights dogs and they
decide to make an example out of him. It’s terrible. But this is the first
case, and it’s just unfortunate for you. Mr. Ferguson, I’m going to
commit you to the Bureau of Prisons for 60 months. I’m going to max
you out. If they would allow me to give you 20 years, I’d give you 20.
This is a very, very, very serious problem in our prisons. I once had a
man tell me who I represented, you can get anything in prison you want
that you can get outside. We do it all in there. So coming out of the
Eastern District of Arkansas, we’re going to send a loud and clear
message that contraband in prison is not acceptable.
Following this pronouncement, the district court sentenced Ferguson to 60 months
imprisonment. Ferguson timely appealed his sentence, raising procedural error,
substantive reasonableness, and Eighth Amendment issues.
II.
Ferguson argues that the district court committed three procedural errors: (1)
it failed to adequately explain whether it was imposing an upward departure or an
upward variance; (2) it failed to consider all of the statutory sentencing factors; and
(3) it relied on erroneous fact finding. Because Ferguson did not raise his procedural
objections at sentencing, we review for plain error. United States v. McCraney, 612
F.3d 1057, 1067 (8th Cir. 2010).
First, Ferguson argues that the district court committed procedural error in
failing to specify whether it was imposing an upward departure under the Guidelines
-3-
or an upward variance under 18 U.S.C. § 3553(a). He reasons that in the face of this
uncertainty, we must remand because a departure requires specific procedural steps
and additional explanation. See United States Sentencing Commission, Guidelines
Manual, §4A1.3(a)(4)(B). There is no indication, however, that the district court
departed. For example, the district court did not mention a Guidelines departure
provision, revisit its Guidelines range calculation as required for a departure, or claim
to be departing. Furthermore, although the district court never expressly mentioned
section 3553(a), the factors discussed by the district court—the nature and
circumstances of the crime, the history and characteristics of the defendant, and the
need for general deterrence—are the standard considerations for a variance under
section 3553(a), not a departure under the Sentencing Guidelines. Compare 18 U.S.C.
§ 3553(a), with U.S.S.G. §4A1.3. Accordingly, we conclude that the district court
imposed an upward variance and thus was not required to follow the procedural
requirements for departing. United States v. Washington, 515 F.3d 861, 866 (8th Cir.
2008) (concluding that an upward deviation was a variance based on the record).
Second, Ferguson argues that the district court failed to consider all of the
section 3553(a) factors by not considering the need to avoid unwarranted sentence
disparities. Contrary to Ferguson’s contention, “[i]f a district court 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.” United States
v. Gray, 533 F.3d 942, 944 (8th Cir. 2008) (quotation omitted). We presume that
“district judges know the law and understand their obligation to consider all of the §
3553(a) factors.” Id. at 943 (quotation omitted). The district court engaged in an
analysis of several section 3553(a) factors, including the nature and circumstances of
the offense, Ferguson’s history and characteristics, and the need for general
deterrence. The court discussed how the offense involved Ferguson’s two minor
children, Ferguson’s extensive criminal history and multiple drug offenses, and the
serious problem of drugs in prison and the need to deter other prisoners. We conclude
that there was no plain error in the procedural adequacy of the court’s consideration.
-4-
Third, Ferguson argues that the district court committed procedural error by
relying on clearly erroneous factual findings. He says that the district court’s
conclusion that only a statutory maximum sentence would create a sufficient deterrent
effect ignored Agent Thompson’s testimony that federal indictments alone have
caused a drop in contraband at FCC-Forrest City. Agent Thompson’s testimony,
however, is not contrary to the district court’s conclusion. A severe sentence in a
bellwether case would tend to increase the deterrent effect of the indictments. If
anything, responsiveness of the inmates to federal indictments would suggest the
efficacy of the district court’s decision to use a lengthy sentence to send a message.
In any event, the district court’s deterrence findings are not clearly erroneous.2
III.
Ferguson next argues that the district court substantively erred in determining
that the section 3553(a) factors supported a sentence of 60 months and justified such
a substantial upward variance. At oral argument, Ferguson’s counsel emphasized that
the upward variance was a 500% increase from the top of Ferguson’s Guidelines
range.
We review the substantive reasonableness of a sentence under an abuse-of-
discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). Although we may
consider the extent of the district court’s variance, we “give due deference to the
district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the
2
Ferguson also argues that the district court erred in finding that he was the first
prisoner from FCC-Forrest City to be sentenced under 18 U.S.C. § 1791. Ferguson
seeks to supplement the record with information about previous prosecutions that
were not presented to the district court. We deny the motion. Dakota Indus., Inc. v.
Dakota Sportswear, Inc., 988 F.2d 61, 63 (8th Cir. 1993) (stating that appellate courts
may order the record of case enlarged when interests of justice demand it but authority
is rarely exercised and is a narrow exception to general rule that appellate courts may
only consider record made before district courts).
-5-
variance.” Id. A sentencing court abuses its discretion when 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
commits a clear error of judgment in weighing those factors.” United States v. Moore,
565 F.3d 435, 438 (8th Cir. 2009).
The extent of the percentage increase in this case is unremarkable. Gall
specifically rejected using “the percentage of a departure as the standard for
determining the strength of the justifications required for a specific sentence.” Gall,
552 U.S. at 47. The Court warned that when applying a mathematical approach,
“deviations from the Guidelines range will always appear more extreme—in
percentage terms—when the range itself is low.” Id. at 47-48. We have routinely
upheld larger absolute month variances, see, e.g., United States v. Larrabee, 436 F.3d
890, 894 (8th Cir. 2006) (affirming upward variance of 128 months), and have upheld
larger percentage variances, see, e.g., United States v. Clay, 579 F.3d 919, 934 (8th
Cir. 2009) (affirming upward variance of 615%).
Ferguson responds that this case is unique because the district judge justified
his sentence primarily by the need to send the message that contraband will not be
tolerated in prisons. Ferguson argues it is unfair that his sentence was driven by his
misfortune in being the first drug case from FCC-Forrest City to proceed to
sentencing, rather than by a consideration of individual factors. However, we have
upheld severe sentences imposed in part for reasons unrelated to the personal
characteristics of the particular defendant. United States v. Foy, 617 F.3d 1029, 1037
(8th Cir. 2010) (affirming upward variance even though the district court
acknowledged a history of “being harder on violent defenders [sic] than what the
government often recommends” and for giving defendants with Foy’s criminal history
a “very bad day”) (alteration in original). Furthermore, Congress specifically made
general deterrence an appropriate consideration under section 3553(a)(2)(B), and we
have described it as “one of the key purposes of sentencing.” United States v.
-6-
Medearis, 451 F.3d 918, 920 (8th Cir. 2006). Finally, other circuits have upheld
sentences where district courts indicated a desire to send a message. See, e.g., United
States v. Carreto, 583 F.3d 152, 159-60 (2d Cir. 2009); United States v. Blackston,
940 F.2d 877, 894 (3d Cir. 1991); United States v. Malik, 680 F.2d 1162, 1166 (6th
Cir. 1982).
In the circumstances of this case, the need for deterrence was a valid sentencing
consideration. Ferguson pled guilty to bringing 28 grams of marijuana and tobacco
into a prison that Agent Thompson characterized as struggling to gain control of its
contraband problem. Agent Thompson also testified that this was the first drug case
to proceed to sentencing and that federal prosecutions were having a deterrent effect
on the inmates.
Additionally, as described previously, the district court considered all of the
section 3553(a) sentencing factors before imposing the upward variance. The district
court emphasized that Ferguson’s offense was particularly egregious because his
minor children were present and Ferguson’s criminal history was lengthy, including
multiple gun and drug convictions and a state conviction for possession of contraband
in a penal institution. Furthermore, the district court had information that Ferguson’s
extensive disciplinary history at FCC-Forrest City included using drugs and
possessing homemade intoxicants, violations not included in his criminal history
points. In summary, although some might argue that there is a degree of unfairness
when non-personal characteristics contribute to a sentence, here the district court’s
focus on deterrence and its balancing of the section 3553(a) factors do not make the
sentence unreasonable.
IV.
Finally, Ferguson argues that 60 months imprisonment for possession of 28
grams of contraband constitutes cruel and unusual punishment in violation of the
-7-
Eighth Amendment. We review de novo an Eighth Amendment challenge to a
sentence. United States v. Wiest, 596 F.3d 906, 911 (8th Cir. 2010).
The Eighth Amendment “contains a narrow proportionality principle that
applies to noncapital sentences.” Id. (internal quotations omitted) (quoting Ewing v.
California, 538 U.S. 11, 20 (2003)). “[I]t is exceedingly rare for a non-capital
sentence falling within the authorized statutory range to constitute a violation of the
Eighth Amendment.” United States v. Paton, 535 F.3d 829, 838 (8th Cir. 2008). In
deciding whether a sentence is grossly disproportionate to a crime, we “compare the
gravity of the offense committed to the harshness of the penalty imposed.” Henderson
v. Norris, 258 F.3d 706, 709 (8th Cir. 2001). Given the serious contraband issues at
FCC-Forrest City and Ferguson’s extensive criminal history, including several prison
contraband violations, we find no gross disparity between the sentence and the crime.
Accordingly, we conclude Ferguson’s sentence does not violate the Eighth
Amendment’s prohibition against cruel and unusual punishment.
V.
The judgment of the district court is affirmed.
______________________________
-8-