United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-2099
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Jason D. Gray, *
*
Appellant. *
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Submitted: January 14, 2008
Filed: July 18, 2008
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Before COLLOTON and SHEPHERD, Circuit Judges, and ERICKSON,1 District
Judge.
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COLLOTON, Circuit Judge.
Jason Gray pled guilty to unlawful possession of a firearm as a previously
convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He was
arrested at 3:40 a.m. on April 4, 2006, after a routine traffic stop during which a
loaded .357 caliber handgun was found beneath the driver’s seat of a vehicle that Gray
1
The Honorable Ralph R. Erickson, United States District Judge for the District
of North Dakota, sitting by designation.
was driving. The district court2 sentenced Gray to 84 months’ imprisonment, a term
that fell within the advisory guidelines range of 70 to 87 months for an offender at
offense level 21 and criminal history category V. Gray appeals, arguing that the
district court failed adequately to consider the sentencing factors in 18 U.S.C. §
3553(a). We affirm.
Under the advisory guidelines regime announced in United States v. Booker,
543 U.S. 220 (2005), and further explained in Rita v. United States, 127 S. Ct. 2456
(2007), and Gall v. United States, 128 S. Ct. 586 (2007), a sentencing court must
consider the factors enumerated in § 3553(a) when selecting a sentence. A district
court commits “significant procedural error” in this system if it fails “to consider the
§ 3553(a) factors” or fails “to adequately explain the chosen sentence – including an
explanation for any deviation from the Guidelines range.” Gall, 128 S. Ct. at 597.
Gray observes that the district court did not expressly mention the § 3553(a) factors,
and argues that the record fails to show that the court adequately considered them.
Booker, Rita, and Gall were hardly obscure decisions likely to have been
overlooked by federal sentencing judges, and we presume that “district judges know
the law and understand their obligation to consider all of the § 3553(a) factors.”
United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc) (citing Walton v.
Arizona, 497 U.S. 639, 653 (1990) (“Trial judges are presumed to know the law and
to apply it in making their decisions.”), overruled on other grounds by Ring v.
Arizona, 536 U.S. 584, 609 (2002)). We have said that in determining whether the
district court considered the relevant factors in a particular case, “the context for the
appellate court’s review is the entire sentencing record, not merely the district court’s
statements at the hearing.” United States v. Perkins, 526 F.3d 1107, 1111 (8th Cir.
2008); see also United States v. Robinson, 516 F.3d 716, 718 (8th Cir. 2008). If a
2
The Honorable Scott O. Wright, United States District Judge for the Western
District of Missouri.
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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.” Perkins, 526 F.3d at 1111 (internal quotation omitted).
When considering the related matter of whether a district court had provided
the requisite “statement of reasons” for a sentence under 18 U.S.C. § 3553(c), the
Supreme Court acknowledged that “when a judge decides simply to apply the
Guidelines to a particular case, doing so will not necessarily require lengthy
explanation.” Rita, 127 S. Ct. at 2468. Where a sentencing judge imposes a sentence
within the advisory guideline range, “[c]ircumstances may well make clear” that the
judge believed the case was typical, and “rest[ed] his decision upon the Commission’s
own reasoning that the Guidelines sentence is a proper sentence.” Id. The Court
observed that when a defendant presents non-frivolous arguments for a variance, “the
judge will normally go further and explain why he has rejected those arguments,” but
Rita also indicates that not every reasonable argument advanced by a defendant
requires a specific rejoinder by the judge. Compare id. at 2469 (“The judge . . .
considered Rita’s lengthy military service, including over 25 years of service, both on
active duty and in the Reserve, and Rita’s receipt of 35 medals, awards, and
nominations.”) (emphasis added), with id. at 2474 (Stevens, J., concurring) (observing
that Rita’s status as “a veteran who received significant recognition for his service to
his country” was “not mentioned” by the district judge, and characterizing this as a
“serious omission” and “significant flaw in the sentencing procedure”).
At sentencing in this case, Gray’s counsel acknowledged that the advisory range
was correctly calculated at 70-87 months’ imprisonment, but argued that a sentence
of 48 months was “more than adequate.” She argued that two prior convictions
underlying his base offense level, see USSG § 2K2.1(a)(2), did not warrant the
sentence recommended by the Sentencing Commission. She suggested that the first
conviction, for two counts of distribution of a controlled substance near a school in
1999, should not be used to “enhance” his sentence, because he was placed on
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probation, with a suspended imposition of sentence, and “completed successfully” the
three-year term of probation. She also urged the court to give little weight to the
second conviction, for domestic assault and endangering the welfare of a child in
2003, because Gray pled guilty in exchange for a sentence of time served, “so that he
could get out of jail immediately.” (S. Tr. 5). Counsel also asserted that Gray did not
have a history of threatening the use of firearms, that he suffers from a physical
disability, and that he had been “adequately punished” for his prior criminal
convictions. In his allocution, Gray asked for leniency by saying that “I know my
background looks pretty bad and stuff,” but “I’m trying to just get an opportunity to
get myself together after this situation that’s happened.”
The sentencing judge, of course, was presented with a presentence report, which
set forth Gray’s offense conduct, criminal history, and personal history. See United
States v. Jones, 493 F.3d 938, 941 (8th Cir. 2007) (“The report contains extensive
information regarding [the defendant], his history and characteristics, the nature and
circumstances of the offense, the kinds of sentences available, and a recommended
advisory sentencing guidelines range, all of which are factors under § 3553(a).”),
vacated by 128 S. Ct. 928 (2008), and reinstated by No. 06-3489, 2008 WL 1901729,
at *1 n.2 (8th Cir. May 1, 2008) (per curiam) (unpublished). This report disclosed that
the 1999 drug offenses discussed by Gray’s counsel involved two undercover
purchases of crack cocaine from Gray near a middle school. With respect to the
probationary sentence for those offenses, the report explained that Gray “incurred
several violations during this term of probation,” including failure to pay court costs,
failure to perform community service, and arrests for new offenses of domestic assault
in the third degree, assault on a law enforcement officer, domestic assault in the
second degree, and endangering the welfare of a child. The state court, however,
“chose not to act on these reported violations,” and Gray’s term of probation expired
as scheduled after three years. (PSR ¶ 29). As for the 2003 domestic assault, the
presentence report explained that Gray had assaulted the mother of his child, while she
was holding an infant in her arms, by slapping her with an open hand and punching
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her with a fist, each time causing the victim to fall down a flight of stairs with the
child. The offense conduct concluded with Gray kicking the victim in the back and
ribs as she lay on the floor shielding her child. (PSR ¶ 32). Gray also had sustained
convictions for larceny under fifty dollars in 1998, possession of marijuana in 1999,
two counts of third-degree domestic assault in 2002, two counts of assault on a law
enforcement officer in 2002, and driving while suspended on two occasions in 1998
and once in 2003.
The presentence report set forth Gray’s history of alcohol consumption,
including a medical diagnosis of alcoholic liver damage. It also described prior drug
use, beginning as early as 2000, including Gray’s admission that he was under the
influence of marijuana and ecstasy at the time of the instant offense in 2006, and
Gray’s submission of at least one specimen that tested positive for cocaine while
attending an outpatient substance abuse program in 2003. (PSR ¶ 61; Addendum at
2). The report explained that Gray dropped out of high school in the eleventh grade,
never achieved a GED, and had no reported employment history. Gray’s sister
advised the probation office that Gray “could use help with his anger issues.” (PSR
¶ 57).
It was in this context that the district court rendered its sentencing decision.
After hearing from Gray and his counsel, the court observed that Gray had neither a
high school diploma nor a GED, and urged him to get a GED or to learn a skill while
in prison so he could get a “decent job.” The court also admonished Gray that he was
“going to have to get off of using drugs and alcohol,” and that while Gray was only
26 years old, he was off to a “kind of rocky start.” The court then sentenced Gray to
a term of 84 months’ imprisonment, and recommended that he be placed in an
institution where he could receive drug treatment and anger-control treatment, and
where he could earn a GED and get training to learn a business or profession.
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Gray did not object at sentencing to the adequacy of the district court’s
explanation or consideration of § 3553(a), so we review his objection on appeal for
plain error. Perkins, 526 F.3d at 1111. We do not think Gray has established a plain
procedural error. As in Rita, the judge “might have added explicitly that he had heard
and considered the evidence and argument,” or that he thought Gray’s personal
circumstances were not sufficient to warrant a sentence different than that
recommended by the Sentencing Commission for the typical case. 127 S. Ct. at 2469.
As in Perkins, where the district court said simply that “the record speaks for itself,”
526 F.3d at 1111, the judge might have given more detailed reasons with specific
reference to the § 3553(a) factors. Cf. United States v. Guarino, 517 F.3d 1067, 1069
(8th Cir. 2008). But we are satisfied, in context, that the district judge here was aware
of the § 3553(a) factors and adequately considered them in selecting an appropriate
sentence. He referred to relevant portions of Gray’s history and characteristics,
including his lack of education or training, his prior substance abuse, and his “rocky
start.” The latter remark evidently was a short-hand reference to Gray’s criminal
history, and given the serious nature of this history, we do not think further
elaboration was necessary in response to counsel’s argument that Gray’s prior
offenses allegedly resulted in an advisory sentence that was greater than necessary.
We see no substantial argument that Gray’s case was atypical; the case is
“conceptually simple.” Rita, 127 S. Ct. at 2469. The circumstances thus make it clear
to us that the sentencing judge rested his decision on the Sentencing Commission’s
own reasoning that the advisory guidelines sentence is sufficient, but not greater than
necessary, to satisfy the purposes of § 3553(a)(2) for the typical offender with Gray’s
offense conduct and criminal history. See id. at 2468.
The judgment of the district court is affirmed.
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