United States Court of Appeals
For the Eighth Circuit
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No. 18-1170
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Brandon Scott Cloud
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: February 11, 2019
Filed: June 17, 2019
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Before LOKEN, COLLOTON, and KELLY, Circuit Judges.
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KELLY, Circuit Judge.
Brandon Scott Cloud pleaded guilty to sexual abuse of a minor in violation of
18 U.S.C. §§ 1153(a) and 2243(a). At sentencing, the district court1 calculated a
United States Sentencing Guidelines range of 30 to 37 months’ imprisonment. The
1
The Honorable Michael J. Davis, United States District Judge for the District
of Minnesota.
district court varied upward by 23 months from the top of the Guidelines range and
imposed a sentence of 60 months’ imprisonment. Cloud appeals his sentence,
arguing that the district court impermissibly based its upward variance on certain
tribal court documents and imposed a substantively unreasonable sentence.
We first consider whether the district court committed procedural error, and
then review for substantive reasonableness. See United States v. Bryant, 913 F.3d
783, 786 (8th Cir. 2019). We understand Cloud to argue that the district court
procedurally erred by varying upward from the Guidelines range based on
information contained in certain tribal court documents without giving him notice and
an opportunity to challenge their reliability. See Irizarry v. United States, 553 U.S.
708, 715 (2008) (“Sound practice dictates that judges in all cases should make sure
that the information provided to the parties in advance of the hearing, and in the
hearing itself, has given them an adequate opportunity to confront and debate the
relevant issues.”). Cloud’s Presentence Investigation Report (PSR) reveals a history
of various tribal court convictions, including, as relevant here, a sentence of one year
for an indecent liberties charge involving a seven-year-old girl. Cloud objected to the
use of tribal court records for purposes of determining whether an enhancement
pursuant to USSG § 4B1.5(b) applied, arguing that it is not appropriate to rely on
tribal court adjudications for purposes of the enhancement.2 The government also
objected to the enhancement, but on the grounds that the limited records available
from the tribal court did not provide sufficient factual information to determine
whether Cloud “engaged in a pattern of activity involving prohibited sexual conduct.”
USSG § 4B1.5(b). Notably, Cloud did not object to the fact of the tribal convictions
or of any tribal arrests, or to the factual descriptions of the convictions and arrests as
contained in the PSR. Nor did he object to the district court’s use of this information
when imposing the sentence. Accordingly, we review his claim for plain error. See,
2
The tribal court convictions were not included in the calculation of Cloud’s
criminal history score. See USSG § 4A1.2(i).
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e.g., United States v. Coppenger, 775 F.3d 799, 803 (6th Cir. 2015) (applying plain
error standard where defendant did not object to district court’s reliance on
information in undisclosed, inaccessible presentence reports to impose upward
variance).
Applying the plain error standard, we will affirm unless Cloud can show (1) an
error; (2) that is plain; (3) that affects his substantial rights; and (4) that seriously
affects the fairness, integrity, or public reputation of judicial proceedings. United
States v. Boman, 873 F.3d 1035, 1040 (8th Cir. 2017). “To satisfy [the] third
condition, the defendant ordinarily must show a reasonable probability that, but for
the error, the outcome of the proceeding would have been different.” Rosales-Mireles
v. United States, 138 S. Ct. 1897, 1904–05 (2018) (cleaned up).
It does not appear that the district court relied on any information that was not
otherwise available to the court or to the parties. A district court is permitted to base
its decision to impose an upward variance on the uncontested facts set forth in a
defendant’s PSR. See United States v. Zayas, 758 F.3d 986, 990 (8th Cir. 2014)
(“The district court may rely on factual allegations in a presentence report . . . as long
as [the defendant] has not objected to the facts themselves.”). At sentencing, the
district court stated that it had received a complaint and a notation on a docket sheet
from tribal court proceedings showing that Cloud served one year in jail for an
indecent liberties charge involving Cloud putting his hands under a seven-year-old’s
pants and “touching her privates.” In its written Statement of Reasons for imposing
Cloud’s 60-month sentence, the court referred to this incident as well as other assaults
that Cloud perpetrated against female victims in 2009 and 2010. All of this
information was available in the unobjected-to account of Cloud’s criminal history
set forth in the PSR, and the district court was permitted to rely on it. See, e.g.,
United States v. Vasquez, 552 F.3d 734, 739 (8th Cir. 2009). Cloud points to nothing
in the record to indicate that the court relied on anything but the information that it
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recited to the parties and that was also available in the PSR. Thus, on this record,
Cloud has failed to show any error that is plain.
Cloud also argues that the district court imposed a substantively unreasonable
sentence. We review the substantive reasonableness of a sentence for abuse of
discretion. Gall v. United States, 552 U.S. 38, 51 (2007). The factors set out in 18
U.S.C. § 3553(a) guide our review. United States v. Meadows, 866 F.3d 913, 920
(8th Cir. 2017). “A district court abuses its discretion when it (1) ‘fails to consider
a relevant factor that should have received significant weight’; (2) ‘gives significant
weight to an improper or irrelevant factor’; or (3) ‘considers only the appropriate
factors but in weighing those factors commits a clear error of judgment.’” United
States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (quoting United
States v. Kane, 552 F.3d 748, 752 (8th Cir. 2009)).
The district court did not impose a substantively unreasonable sentence.
Because Cloud’s sentence is outside of the advisory Guidelines range, we do not
presume that it is reasonable, but “may consider the extent of the deviation . . .
giv[ing] due deference to the district court’s decision that the § 3553(a) factors, on
a whole, justify the extent of the variance.” Gall, 552 U.S. at 51. The district court
considered “what occurred on the tragic evening” when the sexual abuse took place
and noted that the victim was a thirteen-year-old family member who believed she
was safe with family when Cloud began sexually assaulting her while she was asleep.
The court also expressed concern that Cloud had engaged in similar conduct in the
past and determined that a lengthy prison sentence was necessary to protect the
public—children in particular. We are satisfied that the district court did not abuse
its discretion in imposing an upward variance of 23 months.
We are not persuaded by Cloud’s arguments to the contrary. Cloud contends
that the district court failed to take into consideration certain mitigating factors,
including his difficult life circumstances. But the district court did not improperly
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exercise its wide latitude when it afforded greater weight to the aggravating factors
in Cloud’s case than the mitigating factors his counsel brought to its attention. See,
e.g., United States v. Ballard, 872 F.3d 883, 885 (8th Cir. 2015) (per curiam). Cloud
also argues that the district court improperly considered the disparity between his
sentence in federal court and what he would have received in state court. In support
of his argument, he points to the district court’s statement at sentencing that “if this
had occurred off the reservation in state court, [in] my understanding . . . criminal
sexual conduct in the first degree in state court would have called for a sentence of
144 months in prison.” A district court may not “consider potential federal/state
sentencing disparities under § 3553(a)(6).” United States v. Deegan, 605 F.3d 625,
635 (8th Cir. 2010). Here, the district court began explaining its sentence by telling
Cloud that it was concerned that he had “slipped through the cracks of the judicial
system.” In this context, it is unclear whether the court’s subsequent reference to the
sentence that “would have [been] called for” in state court was directed to Cloud’s
past tribal court conviction or the instant offense. In any event, our review of the
record confirms that the district court did not afford any such disparities significant
weight. Its main concerns were the seriousness of the instant offense, Cloud’s history
and characteristics, and the need to protect the public. Therefore, the district court
did not abuse its discretion by relying significantly on an improper factor. See United
States v. Wrice, 855 F.3d 832, 832–33 (8th Cir. 2017) (per curiam).
We affirm the judgment of the district court.
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