Submitted: February 9, 2015.
Appeal from United States District Court for the Northern District of Iowa, Waterloo.
For United States of America, Plaintiff - Appellee: Jacob Alden Schunk, U.S. Attorney's Office, Northern District of Iowa, Cedar Rapids, IA.
For Aaron J. Webster, Defendant - Appellant: John P. Messina, Assistant Federal Public Defender, Federal Public Defender's Office, Southern District of Iowa, Des Moines, IA.
Aaron J. Webster, Defendant - Appellant, Pro se, Waverly, IA.
Before BYE, BRIGHT, and BENTON, Circuit Judges.
BENTON, Circuit Judge.
Aaron Jamal Webster pled guilty to one count of possessing an unregistered sawed-off rifle, in violation of 26 U.S.C. § § 5841, 5861(d), and 5871. The district court departed (or alternatively varied) upward from the advisory Guidelines range--70 to 87 months--to the statutory maximum of 120 months' imprisonment. Webster appeals, asserting procedural error. Having jurisdiction under 28 U.S.C. § 1291, this court reverses and remands.
Webster, on pretrial release for domestic assault, violated a court order not to visit his girlfriend's residence. A fight broke out between him and her two brothers. As the brothers began to leave, Webster retrieved the unregistered rifle from the residence and shot at their vehicle. His shot shattered the rear window, punctured
the driver's headrest, struck the windshield, and narrowly missed the brothers.
Webster argues that the district court committed procedural error by " selecting a sentence based on clearly erroneous facts." See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). He failed to object to the district court's reliance on the challenged facts, so review is for plain error. See United States v. Taylor, 747 F.3d 516, 519 (8th Cir. 2014). Webster must thus show: (1) an error, (2) that is plain, and (3) that affects substantial rights. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). A plain error will not be corrected unless (4) it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id.
Webster claims the district court based its sentence on the clearly erroneous facts of a pending domestic-assault charge. In written response to the Presentence Investigation Report (PSR), Webster objected to the part of Paragraph 28 that stated the allegations of the charge. The government contends that Webster failed to specifically and clearly object to these allegations. See United States v. Razo-Guerra, 534 F.3d 970, 976 (8th Cir. 2008) (objections to PSR must be made with specificity and clarity). The objection reads: " The defendant denies the allegations contained within the first paragraph of paragraph 28. Specifically, the defendant denies being guilty of the pending Domestic Assault charge." Pre-sentencing, Webster clearly and specifically objected to the allegations.
The district court based its sentence on the objected-to facts. The court said the instant offense was " an aggravated circumstance between he . . . and [the girlfriend]. He had abused her before." True, the court says that the fact of abuse is " set forth in the unobjected-to portions of the [PSR], Paragraph 28." The court is wrong. The unobjected-to part mentions only Webster's conduct on pretrial release. The district court granted the departure/variance after reciting the " aggravated" nature of each ...