Submitted: January 9, 2017
from United States District Court for the Northern District
of Iowa - Cedar Rapids
SMITH,  GRUENDER, and SHEPHERD, Circuit
Taylor, Jr., pleaded guilty to possessing a gun while a felon
and was sentenced to 96 months' imprisonment. This
sentence reflects a 25-month upward departure from
Taylor's initial Guidelines range. The district
court enhanced the sentence to reflect
Taylor's understated criminal history and his recidivism
risk. Taylor appeals this departure and the substantive
reasonableness of his sentence. We affirm.
2014, Taylor shot a .357 Ruger revolver toward people he
believed had assaulted him a few days earlier. As a felon,
Taylor could not lawfully possess this firearm. After he
pleaded guilty to possessing it, the district court
calculated his Guidelines sentencing range as 57-71
months' imprisonment. The government asked the court to
depart upward by one criminal history category under U.S.S.G.
§ 4A1.3 and four offense levels under § 5K2.21,
which together would increase Taylor's range to 100-120
months' imprisonment. The court departed upward under
§ 4A1.3(a)(1) by two criminal history categories, which
put Taylor's range at 77-96 months' imprisonment.
4A1.3(a)(1) authorizes an upward departure if "reliable
information indicates that the defendant's criminal
history category substantially under-represents the
seriousness of the defendant's criminal history or the
likelihood that the defendant will commit other crimes."
The district court based its departure on both grounds.
First, Taylor accumulated 20 convictions in the 12 preceding
years. (He was 28 years old at sentencing.) Five of these
offenses were committed while other charges were pending.
Second, the court noted a pattern of escalating violent
behavior and poor performance while on supervision. It also
noted Taylor's firearm use in the instant offense. It
based the departure "mostly . . . on the inadequacy of
the criminal history category to reflect his true criminal
behavior and high risk to recidivate." The court then
sentenced Taylor at the high end of the new range: 96 months.
In applying the 18 U.S.C. § 3553(a) sentencing factors,
the court again noted Taylor's extensive criminal
history, gun use, driving under the influence, burglaries,
and "assaultive behavior."
review an upward departure under § 4A1.3 for abuse of
discretion. United States v. Jones, 596 F.3d 881,
883 (8th Cir. 2010). Taylor contends that his prior
convictions were too inconsequential to warrant an upward
departure. He characterizes them as "nothing more than
minor infractions of the law." Although he mostly
received light sentences, many of the offenses were serious.
In 2005, at age 17, he burgled a woman's home. In 2009,
at age 21, he assaulted a sheriff's deputy. The next year
he committed another assault. The year after that he struck
another person in the mouth with his fist. He acquired a
disorderly conduct conviction for fighting just over a year
later. And within a year of that offense he drove a vehicle
while intoxicated. In July 2014 he committed the instant
offense by possessing the .357 Ruger. These offenses were
interspersed with others: drug possession, public
intoxication, providing false identification, and driving
with a suspended license. Many of these interspersed
convictions and the one for disorderly conduct received no
criminal history points.
district court did not abuse its discretion by departing
upward to accurately reflect Taylor's criminal history
and his likelihood of committing more crimes. Even minor
crimes may show a likelihood of recidivism if they portray a
defendant who is particularly incorrigible. United States
v. Schwalk, 412 F.3d 929, 934 (8th Cir. 2005). Because
Taylor's crimes were not all minor and together show a
likelihood of further crime, departing upward under §
4A1.3(a)(1) was within the court's discretion.
also contends that his sentence is substantively
unreasonable. He argues that a sentence at the bottom of the
initial Guidelines range (57 months) would be sufficient to
serve the sentencing goals, considering his limited history
of substance abuse, his influence on his family, and his
positive employment history. The record reflects that the
district court reviewed the evidence fully aware of the
applicable sentencing factors. It had "wide latitude to
weigh the § 3553(a) factors . . . and assign some
factors greater weight than others in determining an
appropriate sentence." United States v. Lasley,
832 F.3d 910, 914 (8th Cir. 2016) (quoting United States
v. Maxwell, 664 F.3d 240, 247 (8th Cir. 2011)). And it
did not abuse that discretion here.
The Honorable Lavenski R. Smith became
Chief Judge of the United States Court of Appeals for the
Eighth Circuit ...