United States Court of Appeals
For the Eighth Circuit
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No. 22-2317
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United States of America
Plaintiff - Appellee
v.
Nicholas Michael Macmillan
Defendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: November 14, 2022
Filed: February 9, 2023
[Unpublished]
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Before BENTON, KELLY, and ERICKSON, Circuit Judges.
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PER CURIAM.
Nicholas Michael MacMillan pled guilty to interstate travel in aid of
racketeering in violation of 18 U.S.C. § 1952(a)(3). The district court sentenced him
to 18 months in prison. Upon release, he violated the conditions of his release. The
district court1 sentenced him to 24 months in prison and 12 months of supervised
release. MacMillan appeals the sentence. Having jurisdiction under 28 U.S.C. §
1291, this court affirms.
MacMillan challenges his within-guidelines sentence. This court reviews
revocation sentences for abuse of discretion. See United States v. Trung Dang, 907
F.3d 561, 564 (8th Cir. 2018). But the court reviews for plain error when, as here, a
defendant claims the district court improperly considered a factor listed in 18 U.S.C.
§ 3553(a)(2)(A) but did not object at sentencing. Id. at 566.
MacMillan contends the district court procedurally erred by considering
improper factors, specifically the need for the sentence “to reflect the seriousness of
the offense, to promote respect for the law, and to provide just punishment for the
offense.” 18 U.S.C. § 3553(a)(2)(A). In support, MacMillan points to the district
court’s statement that it considered “all factors outlined under 18 U.S.C. Section
3553(a).” This argument overlooks the entirety of the district court’s statement:
In crafting this disposition, I have considered all factors outlined under
18 U.S.C. Section 3553(a), including general deterrence, specific
deterrence, protection of the public, the need to avoid unwarranted
sentencing disparities, and the specific history and characteristics of the
defendant.
The court thus specifically stated the factors it considered, which included only those
permitted by 18 U.S.C. § 3583(e). The district court never said it relied on the factors
MacMillan now claims were improper under 18 U.S.C. § 3553(a)(2)(A). The district
court did not err, let alone plainly err, in its sentence.
MacMillan also claims the court substantively erred in imposing his sentence.
This court reviews for abuse of discretion. See United States v. Miller, 557 F.3d
1
The Honorable Brian C. Buescher, United States District Judge for the
District of Nebraska.
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910, 916 (8th Cir. 2009). It is “the unusual case when we reverse a district court
sentence—whether within, above, or below the applicable Guidelines range—as
substantively unreasonable.” United States v. Feemster, 572 F.3d 455, 464 (8th Cir.
2009) (en banc). The district court heard argument about MacMillan’s mental and
physical health and weighed these factors against the multiple opportunities he had
to change his behavior and follow his probation officer directions. The court did not
err in imposing the within-guidelines sentence. See United States v. Misquadace,
778 F.3d 717, 719 (8th Cir. 2015) (district courts have “wide latitude” in weighing
competing factors to determine an appropriate sentence).
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The judgment is affirmed.
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