Submitted: November 14, 2016
Appeal
from United States District Court for the Western District of
Missouri - Jefferson City
Before
RILEY, [1] Chief Judge, SMITH and KELLY,
Circuit Judges.
PER
CURIAM.
Brian
Boykin pleaded guilty to one count of possession with intent
to distribute a controlled substance and two counts of
distribution of a controlled substance, in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(C). The United States
Probation Office recommended a Sentencing Guidelines range of
70 to 87 months' imprisonment based on a total offense
level of 21 and criminal history category V. The district
court[2] sentenced Boykin to 98 months'
imprisonment. Boykin appeals his sentence as substantively
unreasonable. We affirm.
I.
Background
On
November 21, 2013, Boykin sold 0.62 grams of heroin to a
confidential informant (CI) working for the Jefferson City
Police Department in Missouri. Boykin sold another 0.30 grams
of heroin to the same CI the next day. When police arrested
Boykin in February 2014, a search incident to arrest
uncovered another 12 grams of heroin and an additional gram
of crack cocaine on his person. Boykin confessed to regularly
dealing heroin to approximately ten people, trafficking 10 to
20 grams of heroin per week for five months. Boykin spent two
months in state custody for this offense, but the state
dropped its charges once Boykin received a federal
indictment. At the time of his February arrest, Boykin was on
parole for a state conviction of trafficking drugs. Boykin
contacted his parole officer to notify him of the new charge,
and his parole was revoked. Boykin remained in state custody
until April 2014, when he was transferred to the Federal
Bureau of Prisons.
For the
current offense, the probation office determined that Boykin
was accountable for at least 160 grams of heroin during his
five months of admitted dealing. The presentence
investigation report (PSR) assigned Boykin a base offense
level of 24 and a criminal history category V. The PSR also
included a three-point reduction for Boykin's acceptance
of responsibility. The probation office calculated a
Guidelines range of 70 to 87 months' imprisonment, to
which Boykin did not object.
At
sentencing, the government requested an upward variance from
the Guidelines to a sentence of 120 months, noting that
Boykin was previously sentenced to an aggregate of 40
years' imprisonment on state charges but served only
five. The government stressed that Boykin had a history of
serious convictions followed by multiple failed parole
attempts. In opposition, Boykin argued that his sentence
should be at the lower end of the Guidelines range because
his offense of possessing 160 grams of heroin fell at the
lower end of the drug quantity in the statute, which requires
possession between 100 and 400 grams. He also requested
credit for 14 months of related imprisonment-the 2 months he
served in state custody for the same charge and the 12 months
of revoked parole because of his confession to the charge. In
total, Boykin requested a sentence of 56 months'
imprisonment, which would require taking the low end of the
Guidelines range and varying downward 14 months for time
served.
The
district court, taking into account the 18 U.S.C. §
3553(a) factors and the PSR, varied above the Guidelines
range and sentenced Boykin to 98 months' imprisonment,
finding 100 months appropriate but deciding to credit Boykin
2 months for time served in state custody. In discussing the
final sentence, the court pointed to Boykin's multiple
previous convictions for selling narcotics and the great
disparity between the time that he was sentenced to serve and
the time that he actually served. The court determined that
an upward variance was appropriate under the specific
circumstances of Boykin's case. The sentencing court
concluded with a short sermon:
[W]e've got to get out of this lifestyle of selling.
Which becomes a lifestyle. And I've heard enough of
selling where it's the rush of doing it and being in the
game. But it doesn't get you anywhere but in front of me
and in jail. Okay. I'm done preaching.
Boykin
asserts that the court's admonition betrayed an improper
weighing of the § 3553(a) factors.
II.
Discussion
Regardless
of whether the final sentence is inside or outside the
Guidelines range, we review a defendant's sentence under
a deferential abuse-of-discretion standard. United States
v. Goodale, 738 F.3d 917, 924 (8th Cir. 2013). We first
analyze the district court's Guidelines application for
procedural error, and in the absence of a procedural error,
we consider the substantive reasonableness of the sentence.
United States v. Feemster, 572 F.3d 455, 461 (8th
Cir. 2009) (en banc). Boykin does not allege a procedural
error, so we consider only the substantive reasonableness of
his sentence for an abuse of discretion. See, e.g.,
United States v. Vanhorn, 740 F.3d 1166, 1169 (8th
Cir. 2014). "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.'" Feemster ...