United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-1779
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Randy McDowell, *
*
Appellant. *
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Submitted: December 16, 2011
Filed: April 18, 2012
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Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.
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COLLOTON, Circuit Judge.
Randy McDowell pleaded guilty to one count of possession of
pseudoephedrine, knowing and having reasonable cause to believe it would be used
to manufacture methamphetamine, in violation of 21 U.S.C. § 841(c)(2). The district
court1 sentenced him to 48 months’ imprisonment. On appeal, McDowell argues that
the district court erred by failing to recognize or consider its authority to depart
downward from the advisory guideline range. He also contends that the district court
1
The Honorable E. Richard Webber, United States District Judge for the
Eastern District of Missouri.
failed to consider the need to avoid unwarranted sentencing disparity, and imposed
an unreasonable sentence. We affirm.
Prior to sentencing, McDowell filed a written sentencing memorandum and
motion for a downward departure under the advisory sentencing guidelines based on
his mental health, physical condition, and criminal history. Alternatively, McDowell
requested a downward variance from the advisory range for the same reasons. At
McDowell’s sentencing hearing, the district court calculated an advisory guideline
range of 63 to 78 months’ imprisonment, based on a total offense level of 25 and a
criminal history category II. After hearing arguments from McDowell’s counsel, the
court explained that it was “required to look at all the factors of 18 United States
Code 3553(a) to decide a sentence to be imposed in this case.” The court discussed
a number of issues relating to the § 3553(a) factors and sentenced McDowell below
the advisory range to 48 months’ imprisonment.
McDowell first argues that the district court committed procedural error by
failing to recognize and consider its authority to depart under the advisory guidelines.
He claims that this error is evident because the district court proceeded to discuss the
§ 3553(a) factors without mentioning the requested departures. McDowell’s only
objection at sentencing was “for procedural substantive reasons that the Court didn’t
weigh the factors of his background and history appropriately.” This general
objection did not give the district court notice and opportunity to correct the alleged
error in the first instance, so we review for plain error. See United States v. M.R.M.,
513 F.3d 866, 870 (8th Cir. 2008). To gain relief, McDowell must show an error that
is clear or obvious under current law, and he must demonstrate that the error affected
his substantial rights and seriously affected the fairness, integrity, or reputation of
judicial proceedings. United States v. Olano, 507 U.S. 725, 732-34 (1993).
McDowell has not established that the district court failed to recognize or
consider its authority to depart under the guidelines. “We presume that a district
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court is aware of the scope of its authority to depart,” United States v. Patten, 397
F.3d 1100, 1105 (8th Cir. 2005), and the district court explained that it would “decide
if there should be any departure under the guidelines.” The court’s failure to make
an explicit ruling on McDowell’s motion does not amount to a clear or obvious error.
See United States v. Lainez-Leiva, 129 F.3d 89, 93 (2d Cir. 1997) (per curiam). The
record shows that the district court was familiar with McDowell’s sentencing
memorandum, and in discussing the § 3553(a) factors, the court adverted to the issues
that McDowell raised as grounds for a departure, including his criminal history and
physical and mental health. We thus conclude that the district court implicitly denied
McDowell’s motion by proceeding to consideration of the § 3553(a) factors and
making a downward variance from the advisory range. Because the court recognized
its authority to depart, and McDowell makes no assertion that the district court acted
with unconstitutional motive, the court’s implicit denial of McDowell’s motion is
unreviewable. See United States v. Dixon, 650 F.3d 1080, 1084 (8th Cir. 2011).
McDowell next raises two arguments related to an alleged unwarranted
sentencing disparity between his sentence and that of a codefendant, Lori Fisher.
Fisher pleaded guilty to the same offense as McDowell, and the district court
sentenced Fisher to 12 months and one day of imprisonment. McDowell claims that
the district court committed procedural error by failing to consider the need to avoid
unwarranted sentence disparities. He also argues that the “drastic difference”
between the sentences establishes that the court abused its discretion when sentencing
McDowell to 48 months.
The district court was aware of the need to avoid unwarranted sentence
disparities and expressly mentioned that statutory factor. In imposing McDowell’s
sentence, the court explained that it had considered “the need to avoid sentencing
disparity among similarly situated defendants facing similarly situated offenses.”
Fisher, however, was sentenced more than one month after McDowell. McDowell’s
argument, then, is that the district court erred procedurally by failing to consider
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disparity between McDowell’s sentence and a sentence that the district court would
impose several weeks later, and that McDowell’s sentence was rendered substantively
unreasonable by Fisher’s later sentence.
We review the district court’s consideration of the § 3553(a) factors based on
“the entire sentencing record.” United States v. Perkins, 526 F.3d 1107, 1111 (8th
Cir. 2008). Sentencing judges are in a superior position vis-à-vis appellate courts to
find facts and to judge their import under § 3553(a); they have institutional
advantages over the appellate courts in making sentencing determinations; and the
Supreme Court says they even gain insights that are not conveyed by the record. Gall
v. United States, 552 U.S. 38, 51 (2007). But sentencing judges remain mere mortals,
and they are not required to consider events that have not yet occurred. See United
States v. Channelle, 392 F. App’x 729, 735 (11th Cir. 2010) (per curiam) (“The
district court could not have taken Shields’s sentence into consideration when it
sentenced Channelle because Shields was not sentenced until two months after
Channelle . . . .”). As McDowell himself acknowledges, he “had no ability to know
what sentence the district court was contemplating” for Fisher. We take judicial
notice that Fisher’s final presentence investigation report was not prepared until April
20, 2011, more than three weeks after the district court sentenced McDowell, so it
stands to reason that the district court itself was not yet contemplating Fisher’s
sentence. McDowell did not ask the court to delay sentencing so that he would be
sentenced together with Fisher, and nothing in the governing statutes required the
district court to order such a continuance on its own motion. There was no procedural
error.
Nor can the sentence imposed in Fisher’s case establish the substantive
unreasonableness of the sentence imposed earlier in McDowell’s case. The parties
in McDowell’s case had no opportunity to develop a record in the district court on
potential differences between McDowell and Fisher that justified a longer sentence
for McDowell. Cf. United States v. Maxwell, 664 F.3d 240, 245 (8th Cir. 2011)
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(“Sentencing disparities are not unwarranted when there are legitimate distinctions
between codefendants.”). And even if an appellate court were to conclude in
retrospect that there were no legitimate distinctions between the two defendants, there
is no principled basis on which to say that the appropriate sentence for a similarly-
situated defendant was Fisher’s sentence of 12 months’ imprisonment rather than
McDowell’s sentence of 48 months. McDowell points to United States v. Lazenby,
439 F.3d 928 (8th Cir. 2006), in which this court remanded two cases together for
resentencing based on “extreme disparity in the sentences imposed on two remarkably
similar participants in the same criminal conspiracy.” Id. at 932. But Lazenby was
premised on a method of analysis that the Supreme Court rejected in Gall, so its
precedential value is suspect. Compare Lazenby, 439 F.3d at 932 (“An extraordinary
reduction must be supported by extraordinary circumstances.”) (internal quotation
omitted), with United States v. McGhee, 512 F.3d 1050, 1052 (8th Cir. 2008) (per
curiam) (“[W]e understand the Court’s opinion in Gall also to preclude a requirement
of ‘extraordinary circumstances’ to justify an ‘extraordinary variance,’ for that was
the only type of sentence outside the guidelines range to which this court had applied
an ‘extraordinary circumstances’ requirement.”). Neither party appealed in Fisher’s
case, moreover, so there is no mechanism available for this court to direct
reconsideration of the two cases together as in Lazenby. We therefore reject
McDowell’s contention that his sentence is substantively unreasonable.
The judgment of the district court is affirmed. McDowell’s motion to
supplement the record on appeal is denied.
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