United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-2782
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United States of America, *
*
Plaintiff-Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Louis Sayles, *
*
Defendant-Appellant. *
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Submitted: February 17, 2012
Filed: March 28, 2012
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Before LOKEN, BYE, and MELLOY, Circuit Judges.
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MELLOY, Circuit Judge.
Louis Sayles pleaded guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). At sentencing, the district court
applied United States Sentencing Guidelines § 2K2.1(a)(4)(A) to determine a base
offense level and found a prior conviction for manslaughter qualified as a "crime of
violence." Sayles challenged this determination, arguing that the mens rea for the
earlier manslaughter conviction was recklessness and that the offense did not qualify
as a crime of violence. The district court rejected Sayles's challenge and found the
advisory Guidelines range to be thirty to thirty-seven months. Had the court not
found the prior offense to be a crime of violence, the advisory Guidelines range
would have been fifteen to twenty-one months. The court imposed a sentence of
thirty months' imprisonment and held in the alternative that, even if the prior
manslaughter conviction did not qualify as a crime of violence, an upward variance
to thirty months' incarceration would be appropriate in this case.
Sayles appeals, arguing the prior manslaughter conviction does not qualify as
a crime of violence. He also argues the district court committed procedural error in
its alternative holding. Specifically, Sayles argues that the district court failed to
make necessary factual findings to support the upward variance and that, in any event,
the record could not support such findings.
We affirm the judgment of the district court based upon the district court's
alternative holding. Even assuming the crime-of-violence determination involved
error, any such error was harmless in light of the district court's alternative rationale
involving a permissible variance.
I.
Shortly after Sayles was convicted for manslaughter, officers stopped him and
discovered a concealed semiautomatic pistol loaded with ten rounds of ammunition.
Sayles told officers he feared reprisals from the family of the manslaughter victim and
was carrying the pistol for protection. Sayles eventually pleaded guilty to being a
felon in possession of a firearm.
The presentence investigation report for this case, at paragraph twenty-eight,
contains two competing accounts of the facts underlying Sayles's prior state
conviction for manslaughter. One of the accounts is described as a statement from
Sayles to officials around the time of the prior offense. The other is described as a
statement from a juvenile co-defendant involved in the prior offense. Neither Sayles
nor the government objected to this paragraph. Both accounts describe Sayles and
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the juvenile meeting with the eventual victim and the juvenile shooting the victim in
the head. The juvenile's account of the facts describes Sayles and the juvenile as
meeting with the victim in order to purchase drugs for Sayles. The other version,
Sayles's account of the facts, describes the juvenile as intending to rob the victim with
Sayles accompanying the juvenile for protection.1
At the sentencing hearing in the present case, the district court heard arguments
as to whether the prior manslaughter conviction qualified as a conviction for a crime
of violence. The court also explained that it was interested more broadly in the facts
of the prior offense as material to the application of 18 U.S.C. § 3553(a). Ultimately,
the court held the prior offense was a crime of violence. In addition, the court stated:
1
The text of paragraph 28, in relevant part, is as follows:
On August 10, 2009, . . . officers . . . located a victim who had been shot
in the head and killed. . . . [T]he juvenile admitted being at the scene of
the incident. The juvenile states that he and his cousin, Sayles, went to
meet the victim so that Sayles could buy a stick of PCP. During the
transaction, the victim became hostile and the juvenile pulled a revolver
from a backpack and pointed it at the victim. The victim slapped the
weapon away, at which time, the juvenile shot the firearm, hitting the
victim in the head. The juvenile stated that it was self-defense as the
victim was high on drugs and was threatening he [sic] and Sayles. The
juvenile stated that the firearm belonged to Sayles, who got rid of it after
the incident.
. . . Sayles was interviewed and stated that a third party had told the
above juvenile to go and rob the victim. Sayles stated that he went
along with the juvenile to "make sure he was okay." Sayles stated that
the juvenile told the victim to "give up his stuff," and when the victim
did not comply, the juvenile shot him in the head. Sayles stated that the
weapon belonged to the juvenile and that he (Sayles) never touched the
weapon.
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The facts that do not seem to be in dispute are that another juvenile was
shot by the, I guess it's cousin of Mr. Sayles, and that Mr. Sayles
accompanied the cousin and that the purpose on the two versions, one
might be that it was for, he accompanied for a robbery, and the other –
a robbery not suggested by Mr. Sayles, but that Mr. Sayles knew about.
And the other theory would be that the purpose was to buy drugs for Mr.
Sayles.
The court then imposed the thirty-month sentence at the bottom of the advisory
Guidelines range and stated, "[I]f I did not do that, . . . I would have used a variance
if necessary to impose a sentence that is based on the, what I view as the factual
background of the criminal history, . . . I would be relying on the facts rather than on
some category in imposing sentence." The district court made clear that it did not
believe itself to be imposing a sentence in the present case based upon a view that the
sentencing court in the earlier manslaughter case had been too lenient. The district
court also noted that it believed Sayles's assertion that he was carrying the gun for
protection. The court concluded:
A 30-month sentence seems to me to be quite adequate for purposes of
deterrence and punishment for the seriousness of the misconduct. . . .
Accepting the idea that the possession of the firearm was for protective
purposes because, apparently because the family of the victim he was
afraid was out to get him, that does somewhat color the culpability here.
But the law needs to be followed, and that is that even people who are
fearful of violence and who have a felony conviction must be disciplined
to the extent of not being armed. Whether that takes moving someplace
else if there's a blood feud going on or otherwise, it does not justify
getting set up for a gun battle.
On appeal, Sayles challenges the crime-of-violence determination. He also
alleges procedural error surrounding the court's alternative basis for the thirty-month
sentence. We interpret his arguments as also asserting a challenge to the substantive
reasonableness of the sentence.
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II.
We review the district court's factual determinations at sentencing for clear
error and its application of the Guidelines de novo. United States v. Williams, 627
F.3d 324, 327 (8th Cir. 2010). We review the substantive reasonableness of the
overall sentence under an abuse of discretion standard. Id. We have held that it is
permissible for sentencing courts to offer alternative explanations for their sentencing
decisions and that, in some circumstances, such explanations may serve to prove
other identified sentencing errors harmless. See United States v. Straw, 616 F.3d 737,
742–43 (8th Cir. 2010) ("Where the record clearly . . . show[s] not only that the
district court intended to provide an alternative sentence, but also that the alternative
sentence is based on an identifiable, correctly calculated guidelines range, any error
in applying an enhancement for number of victims is harmless." (internal citations
and quotations omitted)). In general, we have found harmless sentencing error when
a court specifically identifies the contested issue and potentially erroneous ruling, sets
forth an alternative holding supported by the law and the record in the case, and
adequately explains its alternative holding. See Id. ("Incorrect application of the
Guidelines is harmless error where the district court specifies the resolution of a
particular issue did not affect the ultimate determination of a sentence."); cf. United
States v. Bah, 439 F.3d 423, 431–32 (8th Cir. 2008) (holding that an alternative
sentence did not make a Guidelines error harmless where the alternative sentence is
pronounced as a blanket cure for any Guidelines errors and without reference to a
specific potential error such that a reviewing court cannot determine the Guidelines
range used in alternative sentence).
Here, even assuming the crime-of-violence determination involved error, any
such error was harmless. The district court clearly identified the contested crime-of-
violence issue, sought and discussed facts as necessary to support its broader
sentencing decision, and adequately explained its overall sentence applying 18 U.S.C.
§ 3553(a).
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Sayles argues primarily that paragraph twenty-eight cannot serve as factual
support for the district court's alternative holding because it is internally inconsistent
and because the district court did not make a detailed factual finding as to which of
the two competing versions of the prior offense it credited as trustworthy. Sayles also
argues no such finding could be made because any choice between the two would
amount to impermissible speculation.
We disagree. The district court clearly explained what it perceived as the
common facts within the two scenarios described in paragraph twenty-eight of the
report. Sayles did not object to this paragraph of the report, and, in general,
unobjected-to factual assertions in a presentencing report may be used to support
factual findings under the preponderance of the evidence standard at sentencing. See
United States v. Razo-Guerra, 534 F.3d 970, 975 (8th Cir. 2008) ("In determining
whether the Government has met its burden, the district court 'may accept any
undisputed portion of the [PSR] as a finding of fact.'" (quoting Fed. R. Crim. P.
32(i)(3)(A))).
This case involves a slight twist on the normal use of presentence reports to
establish facts because paragraph twenty-eight does not purport to describe the actual
facts of the prior offense. It merely describes the two conflicting accounts of the facts
surrounding the prior offense as provided by Sayles and the juvenile co-defendant.
Further, these two reports are only partially consistent with one another. Sayles, then,
did not admit to all of the facts of the underlying offense by failing to object to
paragraph twenty-eight. Rather, he merely admitted that he and the juvenile co-
defendant in the earlier homicide case had, at an earlier time, given the statements as
described in paragraph twenty-eight.
We do not believe, however, that this unique situation nor the limited nature
of the concession resulting from Sayles's failure to object to paragraph twenty-eight
undermine the district court's ruling. The two partially consistent reports are valid
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bases for the district court to make sentencing-related findings, and they do not exist
in a vacuum. Rather, they buttress the proof of the elements of the homicide offense
as already established beyond a reasonable doubt by the fact of Sayles's manslaughter
conviction.
Faced with this evidence, the district court distilled paragraph twenty-eight and
relied upon the common facts between the two accounts of the shooting when
applying 18 U.S.C. § 3553(a). The court stated that, where the reports differed, the
difference was immaterial to the weight to be accorded at sentencing for the
§ 922(g)(1) conviction. Regardless of whether Sayles had accompanied the armed
juvenile for protection during a robbery or to obtain drugs for himself, he had
accompanied an armed person to participate in illegal activity of a sort that easily
could escalate into violence.
Nothing in the district court's assessment of the record amounted to a clearly
erroneous factual determination, we find no procedural error, and the district court
did not abuse its discretion in applying an upward variance to impose the thirty-
month sentence. The court was clearly troubled that, given the facts surrounding the
prior conviction, Sayles had proceeded to "set up for a gun battle." Because the
district court's alternative basis for the sentence is sound, any purported error in the
crime-of-violence determination is harmless.
We affirm the judgment of the district court.
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