United States Court of Appeals
For the Eighth Circuit
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No. 21-1594
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United States of America
Plaintiff - Appellee
v.
Eric L. Harper
Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: January 10, 2022
Filed: July 14, 2022
[Unpublished]
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Before COLLOTON, KELLY, and KOBES, Circuit Judges.
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PER CURIAM.
Eric Harper pleaded guilty to being a felon in possession of a firearm, 18
U.S.C. § 922(g). The district court 1 varied upward from the Guidelines range and
sentenced him to 66 months in prison. Harper appeals, claiming that his sentence is
substantively unreasonable. We affirm.
1
The Honorable Howard F. Sachs, United States District Judge for the
Western District of Missouri.
While investigating a shooting involving Harper’s car, officers saw Harper at
a gun range with two friends. They watched him fire three guns, then put them into
his backpack before leaving the range. After confirming Harper was a felon, the
officers pulled him over and arrested him. Harper later admitted to possessing the
guns and shooting them at the gun range several times that year.
Harper pleaded guilty to possessing the firearms as a felon. The Presentence
Report assessed four criminal history points based on his prior convictions for
driving without insurance and attempted second-degree robbery. It also
recommended a two-level enhancement under U.S.S.G. § 2K2.1(b)(1)(A) because
the offense involved three guns. This resulted in a Guidelines range of 46–57 months
in prison.
The district court varied upward and sentenced Harper to 66 months in prison.
It found that there was insufficient evidence that Harper was involved in the shooting
that triggered the investigation or a prior shooting that happened during the
attempted robbery. But the court noted that his criminal history score did not
accurately reflect the severity of the attempted robbery conviction. It also pointed
out that the current offense was not a one-off gun possession—Harper admitted to
repeatedly having and shooting guns at the range. The court concluded that an
above-Guidelines sentence was warranted because Harper posed an “unusual danger
to the public” and presented an “unusual need for deterrence.”
Harper appeals his sentence, arguing that the upward variance is substantively
unreasonable. We review the substantive reasonableness of a sentence for abuse of
discretion. United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc).
“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.” Id. (citation omitted).
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Harper first argues that because his second-degree robbery conviction was
already accounted for in his Guidelines range, the court could not rely on the severity
of that conviction to vary upward. Although our decision in United States v.
Martinez, 821 F.3d 984, 989–90 (8th Cir. 2016), cautions against using conduct
already reflected in the Guidelines to support a substantial upward variance, it does
not prohibit it. Rather, Martinez “counsels courts to take care in doing so.” United
States v. Thorne, 896 F.3d 861, 865 (8th Cir. 2018). The district court did not
commit a clear error of judgment in weighing Harper’s prior conviction.
The district court also viewed Harper’s repeated possession of guns as
warranting an upward variance. Harper argues that this was an abuse of discretion
because unlawful possession of a firearm is a “continuing” offense, so the number
of guns or length of time he possessed them is irrelevant for prosecution. United
States v. Richardson, 439 F.3d 421, 422 (8th Cir. 2006) (en banc) (per curiam);
United States v. Maxim, 55 F.3d 394, 397 (8th Cir. 1995). While this is true, the
court is required to consider the sentencing factors in 18 U.S.C. § 3553(a), which
include the nature and circumstances of the offense. Here, the court noted that
Harper’s offense was more serious than a typical felon in possession case because
he admitted to possessing and shooting multiple guns that year. The court did not
abuse its discretion by relying on this factor to vary upward.
Finally, Harper claims that the court failed to consider his family
circumstances as a mitigating factor. The court did not explicitly mention this in its
§ 3553(a) analysis. But Harper argued this issue to the district court both in his
sentencing memorandum and at the sentencing hearing, so we presume that the
district court considered and rejected it as a significant mitigating factor. United
States v. Timberlake, 679 F.3d 1008, 1012 (8th Cir. 2012).
Accordingly, we affirm.
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