Submitted: April 9, 2018
from United States District Court for the District of North
Dakota - Bismarck
COLLOTON, SHEPHERD, and STRAS, Circuit Judges.
SHEPHERD, Circuit Judge.
December 6, 2015, Thomas Jerel Grace was driving down North
Dakota Highway 23 within the Fort Berthold Indian Reservation
when he crossed into oncoming traffic and crashed into the
car of 18-year-old Dariann Tveter, who died at the scene.
Grace's blood alcohol level was .211 percent.
pled guilty to one count of involuntary manslaughter under 18
U.S.C. §§ 1112 and 1153. At sentencing, the
district court determined Grace had an offense level of
19 and a criminal history category of I. As such, his
advisory Guidelines range was 30 to 37 months imprisonment.
United States Sentencing Guidelines Ch. 5, Pt. A. The
district court, however, found an upward variance was
warranted and sentenced Grace to 72 months imprisonment to be
followed by three years of supervised release. Grace appeals
his sentence, alleging it is substantively unreasonable. We
review a defendant's sentence under a deferential
abuse-of-discretion standard." United States v.
Boykin, 850 F.3d 985, 988 (8th Cir. 2017) (per curiam).
"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. (internal
quotation marks omitted). "[I]t will be the unusual case
when we reverse a district court sentence as substantively
unreasonable." Id. (alteration in original)
(internal quotation marks omitted).
first argues the district court abused its discretion by
giving significant weight to an improper factor: his previous
DUI conviction. He also claims the court committed a clear
error of judgment in weighing that factor. Indeed, the
driving factor in the court's decision to vary upward was
Grace's conviction for a DUI that occurred just four
months prior to the fatal accident.
Grace's previous conviction was already taken into
account in determining his criminal history category, a
district court may vary "based on factors already taken
into account by the advisory guidelines, where the Guidelines
do not fully account for those factors, or when a district
court applies broader § 3553(a) considerations in
granting the variance." United States v.
Richart, 662 F.3d 1037, 1052 (8th Cir. 2011) (internal
quotation marks omitted). "We afford the [district]
court 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. White, 816 F.3d 976, 988 (8th Cir. 2016)
(internal quotation marks omitted).
the district court determined the Guidelines did not fully
account for Grace's prior DUI conviction. Cf.
Richart, 662 F.3d at 1053 (affirming upward variance
where the "Guidelines d[id] not fully account for the
nature, circumstances, and seriousness of [the
defendant's] offense"). Grace's prior DUI
occurred on the very same highway only four months before the
accident. In both instances, Grace was highly intoxicated,
with a blood alcohol level of over .21 percent. Grace's
repeated behavior within such a short period of time
indicates a lack of respect for the law and the safety of
others, which was not adequately reflected in his advisory
Guidelines range. 18 U.S.C. § 3553(a)(2)(A) (sentencing
court "shall consider . . . the need for the sentence
imposed to reflect the seriousness of the offense [and] to
promote respect for the law"). In addition, Grace's
repeated behavior following his prior conviction justifies an
upward variance in this instance "to afford adequate
deterrence." Id. § 3553(a)(2)(B). We
therefore conclude the district court neither abused its
discretion nor committed a clear error of judgment in
weighing Grace's prior DUI conviction.
next argues the district court abused its discretion by
giving significant weight to an inapplicable state statute.
In finding the Sentencing Guidelines were too lenient for
Grace's offense, the district court noted that, by
comparison, Grace would be subject to a 10-year mandatory
minimum in North Dakota state court. N.D. Cent. Code §
39-08-01.2(1). The district court made additional references
to the state court mandatory minimum during sentencing.
See Sent. Tr. 23-25, 36.
initial matter, we note that in his opening brief, Grace
argues the state statute is inapplicable to the facts in his
case. Later, in his reply brief, Grace argues the district
court erred in considering sentencing disparities between
defendants in federal and state courts. See United States
v. Nash, 627 F.3d 693, 697 (8th Cir. 2010) (finding
"the district court would have erred to consider
potential federal/state sentencing disparities").
Because Grace's latter argument was not raised in his
opening brief, it is not before us on appeal. See United
States v. Rice, 699 F.3d 1043, 1050 (8th Cir. 2012)
("Issues not raised in a party's opening brief are
conclude the district court did not give significant weight
to the state statute in sentencing Grace. Although the court
noted in passing the potential sentence under North Dakota
law, the court specifically stated that Grace's previous
DUI conviction and his high blood alcohol content were what
"swayed" the court to vary upward. And, after
imposing the sentence, the district court further explained
its analysis under the § 3553(a) factors, specifically
concerning the nature and circumstances of the offense, the
history and characteristics of the defendant, the need to
promote respect for the law, and the need to provide just
punishment and adequate deterrence. Because the district
court carefully considered the § 3553(a) factors and
made "an individualized ...