Submitted: October 15, 2018
from United States District Court for the District of
Minnesota - St. Paul
WOLLMAN, COLLOTON, and BENTON, Circuit Judges.
COLLOTON, Circuit Judge.
convicted William Morris of several offenses, and the
district court initially sentenced him to 420 months'
imprisonment. One offense of conviction was unlawful
possession of a firearm as a convicted felon, and the court
enhanced Morris's sentence under the Armed Career
Criminal Act (ACCA) based on his criminal history.
See 18 U.S.C. § 924(e). In a first appeal, we
vacated Morris's sentence after concluding that his
Minnesota burglary convictions did not qualify as violent
felonies under § 924(e)(1), and that he was therefore
not an armed career criminal. See United States v.
McArthur, 850 F.3d 925, 937-40 (8th Cir. 2017). On
remand, the district court refashioned the sentences on two counts
of conviction, and sentenced Morris to a total term of 380
months' imprisonment. Morris asserts that the district
court made procedural and substantive errors, but we disagree
was convicted on four counts: aiding and abetting attempted
murder in aid of racketeering, see 18 U.S.C.
§§ 1959(a)(5) and 2, aiding and abetting assault
with a dangerous weapon in aid of racketeering, see
id. §§ 1959(a)(3) and 2, use and carrying of
firearms during and in relation to a crime of violence,
see id. § 924(c), and unlawful possession of a
firearm as a previously convicted felon. See id.
§§ 922(g)(1) and 924(e)(1). At the original
sentencing, the court imposed a 360-month term for the
felon-in-possession offense under the ACCA, and a 60-month
consecutive term for the gun charge under § 924(c), for
a total term of 420 months. The court also imposed concurrent
sentences of 120 months for attempted murder and 240 months
for assault with a dangerous weapon.
remand, the court reimposed the sentences of 120 and 240
months, respectively, for attempted murder and assault,
reduced the sentence on the felon-in-possession count to the
statutory maximum of 120 months, and increased the
consecutive sentence on the § 924(c) charge to 140
months. Therefore, the second proceeding reduced the total
sentence from 420 months to 380 months.
argues that the district court committed procedural error by
giving an inadequate explanation for the new sentence. A
district court "must adequately explain the chosen
sentence to allow for meaningful appellate review and to
promote the perception of fair sentencing." Gall v.
United States, 552 U.S. 38, 50 (2007). An explanation is
sufficient if a district judge "set[s] forth enough to
satisfy the appellate court that he has considered the
parties' arguments and has a reasoned basis for
exercising his own legal decisionmaking authority."
Rita v. United States, 551 U.S. 338, 356 (2007). A
district judge will normally explain why he has rejected
non-frivolous arguments for a variance, id. at 357,
but even so, "not every reasonable argument advanced by
a defendant requires a specific rejoinder by the judge."
United States v. Gray, 533 F.3d 942, 944 (8th Cir.
district judge here "once again read through all the
materials, including the parties' submissions,"
heard oral argument regarding the guideline range and
possible variances, and said that he had "considered all
of the arguments" and the "statutory sentencing
factors." The judge explained that he had taken into
account Morris's history and characteristics, the nature
of the offense, the protection of the public, the potential
for unwarranted sentencing disparities, and any signs of
Morris's rehabilitation. The court ultimately concluded
that a term of 380 months was sufficient, but not more than
necessary, to serve the statutory purposes of sentencing.
requested further explanation of the court's decision to
select a term of 140 months for the violation of §
924(c) after imposing only 60 months at the first hearing.
The court explained its view that 380 months was the
"appropriate sentence," now that the ACCA did not
apply, and that adjusting the mandatory consecutive sentence
for the § 924(c) count was one way (but not the only
way) to arrive at the appropriate total punishment. Morris
also said he did not understand why the sentence was longer
than the concurrent sentence that he received in state court
for convictions arising out of the same events. The court
explained that some of the federal charges included an
additional element of racketeering, and that the state
sentences would not result in Morris serving any additional
prison time. The court elaborated that all of the offenses
together could justify a life sentence, but that the court
had chosen the specified terms for each count to give Morris
what the court believed was the appropriate sentence.
conclude the district court's statements and colloquy
with Morris adequately explained the basis for his sentence.
The court considered the relevant statutory factors,
discussed some factors in detail, and responded to
Morris's objections with further explanation. The record
is sufficient to show that the court considered the
parties' arguments and had a reasoned basis for the
sentence imposed. There was no procedural error.
also contends that the new sentence is substantively
unreasonable, and we consider that question under a
deferential abuse-of-discretion standard. Gall, 552
U.S. at 51. Morris argues that the 380-month sentence is
"grossly excessive," because he is no longer
subject to the ACCA. In his view, the district court should
simply have changed the sentence on the felon-in-possession
charge from 240 months to 120 months, retained the original
concurrent sentences of 120 and 240 months for attempted
murder and assault, and adhered to the consecutive term of 60
months on the § 924(c) count. This approach would have
resulted in a total sentence of 300 months rather than the
380 months actually imposed.
government responds that Morris's "functional"
advisory guideline range was 420 months to life imprisonment:
the guideline range for attempted murder, assault, and
felon-in-possession was 360 months to life, see PSR
¶ 127; USSG § 5G1.2(b)-(d), and the § 924(c)
conviction required a consecutive term of at least 60 months.
See USSG § 5G1.2(a). We presume that a sentence
within the advisory guideline range is reasonable, United
States v. Chavarria-Ortiz, 828 F.3d 668, 672 (8th Cir.
2016), and when a district court varies below the range, it
is "nearly inconceivable" that the court abuses its
discretion by declining to vary downward even further.
United States v. Lazarski, 560 F.3d 731, 733 (8th
complains that the district court gave insufficient weight to
two factors: the lesser sentence imposed in state court for
Morris's state crimes and the fact that he was not
subject to the ACCA. But the district court addressed both
contentions and reasonably concluded that the relevant
sentencing factors warranted a term of 380 months. That
Morris did not qualify as an armed career criminal resulted
in some reduction from the original sentence, and the court
even declined to assess the full amount of prison time
recommended by the advisory sentencing guidelines. The