United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-1053
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * District of Nebraska.
*
Robert D. Webster, * [UNPUBLISHED]
*
Appellant. *
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Submitted: June 8, 2009
Filed: August 5, 2009
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Before SMITH and SHEPHERD, Circuit Judges, and LIMBAUGH,1 District Judge.
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PER CURIAM.
Robert Webster appeals from the twenty-four-month revocation sentence that
the District Court2 imposed after Webster admitted to violating the terms of his
supervised release. We affirm.
1
The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the
Eastern District of Missouri, sitting by designation.
2
The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
In 2002, Webster was charged in federal court with the attempted sexual abuse
of his sister-in-law on the Omaha Indian Reservation. He pleaded guilty and was
sentenced to fifty-seven months of imprisonment to be followed by three years of
supervised release. Among the conditions of his supervised release: Webster was not
to purchase, possess, or use alcohol.
While he was incarcerated, Webster completed the residential substance-abuse
program offered by the Bureau of Prisons. But in July 2006, within weeks of his
release from prison, he was arrested for driving under the influence of alcohol after
leading authorities on a high-speed car chase. Webster had a child in the car with him
at the time. A year later, he was again cited for driving while intoxicated. Soon after,
the government sought to revoke Webster's supervised release, but the Petition for
Offender Under Supervision was held in abeyance while Webster completed another
residential alcohol-treatment program. The petition was dismissed on March 17,
2008. Again, within six months, Webster was cited for driving under the influence
of alcohol and for threatening the arresting officer and others. In September 2008, the
government filed a second petition seeking revocation. At the revocation hearing,
Webster admitted that he had violated the conditions of his supervised release by
consuming alcohol. The advisory United States Sentencing Guidelines range of
imprisonment upon revocation was three to nine months. See U.S.S.G. § 7B1.4
(Policy Statement). Nevertheless, as recommended by the United States Probation
officer and requested by the Assistant United States Attorney, the district court
imposed a sentence of twenty-four months' imprisonment, the statutory maximum
revocation sentence, 18 U.S.C. § 3583(e)(3), with no further supervised release to
follow. Webster appeals, challenging the reasonableness of his sentence.
In reviewing a revocation sentence, we apply the same standard as we do when
reviewing an initial sentence. United States v. Miller, 557 F.3d 910, 915–16 (8th Cir.
2009). That is, the sentence must be free of procedural error and substantively
reasonable. Gall v. United States, 552 U.S. 38, __, 128 S. Ct. 586, 597 (2007). A
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sentence may be procedurally flawed if, for example, the sentencing court improperly
calculates the Guidelines range, fails to consider the sentencing factors in 18 U.S.C.
§ 3553(a), calculates a sentence based on clearly erroneous facts, or fails to explain
any deviation from the Guidelines range. Id. "Assuming that the district court's
sentencing decision is procedurally sound, [we] should then consider the substantive
reasonableness of the sentence imposed under an abuse-of-discretion standard." Id.
A sentence may be unreasonable if "the district court overlooked a relevant factor,
gave significant weight to an improper factor, or made a clear error of judgment in
weighing appropriate factors." United States v. Armando Sanchez, 567 F.3d 1009,
1010 (8th Cir. 2009) (per curiam). Webster does not contend that the court committed
procedural error, but he does maintain that the court (1) failed to consider a relevant
factor and (2) erred in weighing the remaining § 3553(a) factors, resulting in an
unreasonable sentence.
Webster first argues that the district court ignored altogether one of the
§ 3553(a) factors when determining his sentence, that is, the advisory range of
imprisonment for revocation sentences noted in the Guidelines policy statement,
§ 7B1.4. See 18 U.S.C. § 3553(a)(4)(B). It is true that the district court did not
mention the applicable range when imposing its sentence, but we reject Webster's
contention that the court did not consider it. During the hearing, the court referenced
"the calculation worksheet and the updated presentence report from Probation." Tr.
at 10. Counsel for Webster also acknowledged "the worksheet that was filed with
everybody and the Court" and brought up the three-to-nine-month advisory Guidelines
range at the hearing. Id. The district court thus was well aware of the advisory
sentencing range, and Webster gives us no reason to presume that the court did not
consider the Guidelines policy statement when imposing a sentence outside that range.
See United States v. Whirlwind Soldier, 499 F.3d 862, 874 (8th Cir. 2007) ("[W]here
the court has before it the information relevant to the factors, we presume the factors
are considered when the court determines the sentence."), cert. denied, 128 S. Ct. 1286
(2008).
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Webster also argues that the district court "made a clear error in judgment in
balancing the remaining statutory sentencing factors." Br. of Appellant at 9. We
disagree. When sentencing Webster, the district court stated, "It is obvious the
defendant needs treatment. . . . I think he needs to be in a very structured environment
to receive the maximum benefit of treatment." Tr. at 18. The court went on to declare
the twenty-four-month sentencing recommendation to be "reasonable and . . . in the
best interests of the defendant." Id. So while the court clearly was concerned that
Webster receive the necessary substance-abuse treatment in an appropriate setting,
that expressed concern is not de facto evidence that the court did not weigh the other
relevant factors. Although the court only mentioned one of the sentencing factors
during the hearing, we are satisfied that the experienced district court judge was aware
of and gave proper consideration to all of the relevant factors. See United States v.
Gray, 533 F.3d 942, 944 (8th Cir. 2008).
The judgment of the district court is affirmed.
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