United States Court of Appeals
For the Eighth Circuit
___________________________
No. 22-1436
___________________________
United States of America
Plaintiff - Appellee
v.
Brandon Scott Cloud
Defendant - Appellant
____________
Appeal from United States District Court
for the District of Minnesota
____________
Submitted: September 19, 2022
Filed: October 6, 2022
[Unpublished]
____________
Before SHEPHERD, KELLY, and GRASZ, Circuit Judges.
____________
PER CURIAM.
Brandon Scott Cloud was convicted of sexual abuse of a minor and sentenced
to 60 months imprisonment, followed by 3 years of supervised release. In February
2022, the district court1 revoked his supervised release and sentenced him to 18
1
The Honorable Michael J. Davis, United States District Judge for the District
of Minnesota.
months imprisonment, followed by 2 years supervised release. Cloud appeals,
arguing that the district court imposed a substantively unreasonable sentence.
Having jurisdiction under 28 U.S.C. § 1291, we affirm.
Cloud’s conviction arises from his sexual abuse of a 13-year-old who was
visiting Cloud’s home on the Red Lake Indian Reservation. After pleading guilty to
one count of sexual abuse of a minor in violation of 18 U.S.C. §§ 1151, 1153(a),
2243(a)(1)-(2), and 2246(2)(A), the district court imposed an above-Guidelines-
range sentence of 60 months imprisonment, followed by a 3-year term of supervised
release, and ordered Cloud to pay restitution in the amount of $110.62. The terms
of Cloud’s supervised release, among other things, prohibited him from committing
new federal, state, or local crimes or from using a controlled substance and mandated
that he pay the court-ordered restitution. Cloud began serving supervised release in
August 2021. Roughly six weeks later, he was charged with, and later pled guilty
to, two counts of terroristic threatening in violation of tribal law. Cloud also tested
positive for methamphetamine three times between October and November 2021
and failed to make any restitution payments, despite having received a $3,000
stimulus check through the Red Lake Nation. Cloud was also dishonest with his
supervising officers when questioned about these violations.
Cloud was ultimately charged with violating the conditions of his supervised
release. At the final revocation hearing, Cloud admitted to three violations: a new
law violation, use of controlled substances, and failure to pay restitution. The district
court calculated the Guidelines range for the revocation sentence at 3 to 9 months
imprisonment but varied upward and imposed a sentence of 18 months
imprisonment, followed by 2 years of supervised release. The district court
explained that it was varying upwards due to the “whirlwind of violations and
criminal activity” Cloud committed during a relatively short period of time on
supervised release, specifically stating that “the only [way] that your community’s
going to be safe is you being locked up.” After the revocation hearing, the district
court entered the judgment and written statement of reasons. The statement of
reasons justified the upward variance based on Cloud’s “complete inability to follow
-2-
the conditions of supervised release.” The statement of reasons also noted several
sentencing factors, including the need to protect the public, to promote respect for
the law, to reflect Cloud’s history and characteristics, and to provide just
punishment.
Cloud appeals, arguing that the district court imposed a substantively
unreasonable sentence. Specifically, Cloud asserts that the district court relied on
the impermissible factor of punishment in fashioning his sentence and that the
district court’s reasoning was not sufficiently compelling to warrant the upward
variance, particularly where the district court did not take into account Cloud’s
substance abuse issues. “We review the reasonableness of a revocation sentence
under the same deferential abuse-of-discretion standard that applies to initial
sentencing proceedings.” United States v. Elbert, 20 F.4th 413, 416 (8th Cir. 2021).
“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) (citation omitted).
First, as to Cloud’s argument that the district improperly relied on punishment
as a factor in sentencing him, 18 U.S.C. § 3583(e) provides the factors that a district
court may consider in imposing a revocation sentence. Section 3583(e) incorporates
some of the § 3553(a) factors, including the history and characteristics of the
defendant and the need to protect the public. Notably, however, § 3583(e) does not
incorporate the § 3553(a)(2)(A) factors of the need “to provide just punishment for
the offense” or to promote “respect for the law.” While the district court’s statement
of reasons included a reference to the § 3553(a) factor of just punishment, the mere
mention of a factor not specified in § 3583(e) is insufficient to show an abuse of
discretion. See United States v. Porter, 974 F.3d 905, 908 (8th Cir. 2020) (“[N]o
case has held that the district court abused its discretion by mentioning ‘respect for
the law’ at a revocation hearing. The record must establish the district court ‘gave
significant weight’ to an improper or irrelevant factor.”). The record demonstrates
-3-
that the district court’s sentence was based primarily on Cloud’s history and
characteristics—namely his drug use, dishonesty, and “abysmal” performance on
supervised release—and the danger Cloud posed to the public, not on the need to
provide just punishment. Indeed, the district court made no mention of punishment
during the revocation hearing when it explained the basis for Cloud’s sentence.
Given the foregoing, the district court did not abuse its discretion by referencing
“just punishment” in the statement of reasons. See United States v. Hall, 931 F.3d
694, 697 (8th Cir. 2019) (“[W]e have found no error where the district court’s use
of the excluded factors was ‘immaterial’ and where it ‘focused primarily on [the
defendant’s] history and characteristics.’” (second alteration in original) (citation
omitted)).
As to Cloud’s argument regarding the district court’s purported insufficiently
compelling justification for the sentence, as discussed above, the district court
detailed at length the reasons for imposing an upward variance. To the extent Cloud
argues the district court erred by not considering the purported role Cloud’s
substance abuse played in his violations and Cloud’s need for inpatient treatment,
this amounts to no more than a disagreement with the weight the district court placed
on the relevant sentencing factors, which does not warrant reversal. See United
States v. Moua, 895 F.3d 556, 560 (8th Cir. 2018) (per curiam) (“The district court
may give some factors less weight than a defendant prefers or more weight to other
factors, but that alone does not justify reversal.” (citation omitted)). The district
court thus did not abuse its discretion in sentencing Cloud.
For the foregoing reasons, we affirm the judgment of the district court.
______________________________
-4-