United States Court of Appeals
For the Eighth Circuit
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No. 22-1121
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United States of America
Plaintiff - Appellee
v.
Alexander Irwin
Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: September 19, 2022
Filed: October 19, 2022
[Unpublished]
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Before SHEPHERD, KELLY, and GRASZ, Circuit Judges.
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PER CURIAM.
Alexander Irwin pled guilty to possessing a firearm as a felon, and the district
court1 sentenced him to 72 months imprisonment, followed by 3 years of supervised
1
The Honorable Stephen R. Clark, United States District Judge for the Eastern
District of Missouri.
release. Irwin appeals his sentence. Having jurisdiction under 28 U.S.C. § 1291,
we affirm.
Law enforcement responded to a call reporting a fight in progress at a
St. Louis County gas station. Upon arrival, officers observed Irwin and another
individual in a physical altercation in the gas station parking lot. Irwin fled the scene
and the officers pursued, ordering Irwin to stop. The chase ended only after an
officer tased Irwin. Officers found a firearm on Irwin’s person, containing 11 rounds
of ammunition in the magazine and a round in the chamber. Officers found an
additional firearm with a defaced serial number on the ground near Irwin.
Pursuant to a written plea agreement, Irwin pled guilty to one count of
possessing a firearm as a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
Irwin’s Presentence Investigation Report (the PSR), prepared by the United States
Probation Office, listed Irwin’s base offense level as 20, pursuant to United States
Sentencing Guidelines (USSG) § 2K2.1(a)(4)(A), which applies to defendants who
have previously sustained a felony conviction for a crime of violence or a controlled
substance offense. The PSR also included a 4-level enhancement pursuant to USSG
§ 2K2.1(b)(4)(B) for the presence of the defaced firearm and a 3-level reduction
pursuant to USSG § 3E1.1(b) for Irwin’s acceptance of responsibility, resulting in a
total offense level of 21. The PSR listed Irwin’s criminal history category as VI,
resulting in a Guidelines range of 77-96 months imprisonment. Irwin objected only
to the inclusion of the 4-level enhancement for the defaced firearm and the related
facts contained in the PSR. Irwin argued in his objection that his correct total offense
level should be 17, resulting in a Guidelines range of 51-63 months imprisonment.
The amended plea agreement and amended PSR reflect such changes, which mooted
Irwin’s objections. The amended plea agreement includes a joint recommendation
of 60 months imprisonment.
At Irwin’s sentencing hearing, the district court asked whether either party
objected to the total offense level of 17 or the criminal history category of VI or
otherwise had any further objections to the PSR. Neither party objected, and the
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district court adopted the Guidelines calculations and the PSR accordingly. After
reviewing the record, the original plea agreement, the amended plea agreement, the
PSR, the Guidelines, and the sentencing factors under 18 U.S.C. § 3553(a), the
district court found that an upward variance was appropriate given that the
Guidelines inadequately accounted for “the particular dangers of [Irwin’s]
conduct . . . , fighting at a gas station while in proximity of a weapon and possessing
it immediately or shortly thereafter, and [Irwin’s] extensive and intensive frequent
criminal history involving violent use of firearms.” Ultimately, the district court
sentenced Irwin to 72 months imprisonment, followed by 3 years of supervised
release.
On appeal, Irwin first argues that the district court erred in calculating his base
offense level because his prior felony conviction no longer qualifies as a crime of
violence for purposes of USSG § 2K2.1(a)(4)(A). Because Irwin agreed to the
proposed base offense level and respective Guidelines range, the Government argues
that Irwin waived this objection; Irwin argues that such failure to object to the
proposed base offense level was inadvertent and that we should accordingly review
for plain error. See United States v. Bailey, 37 F.4th 467, 470 (8th Cir. 2022). We
need not decide whether Irwin affirmatively waived this objection because we
conclude that his argument fails even under plain error review. “Plain error occurs
when there is ‘(1) an error, (2) that is plain, and (3) that affects [the defendant’s]
substantial rights.’” Id. (alteration in original) (citation omitted). Specifically, Irwin
contends that his prior felony conviction for unlawful use of weapons, in violation
of Mo. Rev. Stat. § 571.030.1(4), no longer qualifies as a crime of violence in light
of Borden v. United States, 141 S. Ct. 1817, 1834 (2021). Between the plurality and
an opinion concurring in the judgment, Borden held that a crime committed with a
mens rea of recklessness was insufficient to satisfy the “violent felony” force clause
found in 18 U.S.C. § 924(e). See United States v. Frazier, No. 21-2187, 2022 WL
4114057, at *2 (8th Cir. Sept. 9, 2022). We apply the same rule to the identical
“crime of violence” force clause found in the Guidelines. See id.
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Here, however, Borden is inapplicable. Under Missouri law, a person
commits the offense of unlawful use of weapons if, in part, “he or she knowingly . . .
[e]xhibits, in the presence of one or more persons, any weapon readily capable of
lethal use in an angry or threatening manner.” Mo. Rev. Stat. § 571.030.1(4)
(emphasis added). Borden held only that recklessness was insufficient to satisfy the
force clause, and knowledge is a more culpable mental state than recklessness.
Borden, 141 S. Ct. at 1823, 1834 (plurality opinion) 2; see also United States v.
Lopez-Castillo, 24 F.4th 1216, 1219 n.2 (8th Cir. 2022). Because the Missouri
statute requires knowledge, Borden does not disturb this Court’s previous holdings
that a conviction under Mo. Rev. Stat. § 571.030.1(4) is a crime of violence. See
United States v. Pryor, 927 F.3d 1042, 1043-44 (8th Cir. 2019). Accordingly, the
district court did not commit error, much less plain error, in calculating Irwin’s base
offense level.
Irwin next argues that his sentence is substantively unreasonable. “When we
review the imposition of sentences, whether inside or outside the Guidelines range,
we apply ‘a deferential abuse-of-discretion standard.’” United States v. Feemster,
572 F.3d 455, 461 (8th Cir. 2009) (en banc) (citation omitted). “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). Even so, “[t]he
district court has wide latitude to weigh the § 3553(a) factors in each case and assign
some factors greater weight than others in determining an appropriate sentence.”
United States v. Campbell, 986 F.3d 782, 800 (8th Cir. 2021) (alteration in original)
(citation omitted).
2
At least the Borden plurality interpreted the force clause to expressly “cover[]
purposeful and knowing acts,” id. at 1826 (plurality opinion), though the opinion
concurring in the judgment did not go as far, see id. at 1835 (Thomas, J., concurring
in the judgment).
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Here, Irwin contends that the district court abused its discretion by varying
upward based upon “the substantial harm and danger that could occur” when young
men fight “in the immediate or very near proximity” of weapons “at a gas station
with all the flammable fluids there.” Irwin argues that this so-called speculation
amounts to a “capricious, whimsical, impressionistic [and] ire-driven” assessment
of Irwin’s conduct. United States v. Burns, 577 F.3d 887, 896 (8th Cir. 2009) (en
banc). But a district court is permitted to account for the riskiness of the defendant’s
conduct and the danger it poses to the community, see United States v. Hubbs, 18
F.4th 570, 573 (8th Cir. 2021) (upholding defendant’s sentence when the district
court relied upon the “unreasonable danger and risk” associated with defendant
driving “his motorcycle at high speed with two loaded firearms” in light of his
history with firearms), and “to give ‘greater weight to the nature and circumstances
of the offense than to other § 3553(a) factors,’” United States v. Lovell, 811 F.3d
1061, 1063 (8th Cir. 2016). Moreover, what Irwin describes as the district court’s
“speculation” was not the product of sheer imagination but rather an assessment of
Irwin’s conduct based in part on “his extensive and intensive frequent criminal
history involving violent use of firearms.” Accordingly, we find that the district
court did not abuse its discretion in varying upward based on its reasoned assessment
of the nature and circumstances of Irwin’s conduct.
For the foregoing reasons, we affirm the judgment of the district court.
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