Submitted: November 12, 2018
from United States District Court for the District of South
Dakota - Rapid City
COLLOTON, SHEPHERD, and STRAS, Circuit Judges.
COLLOTON, CIRCUIT JUDGE.
Reif distributed heroin to a nineteen-year-old woman, his
girlfriend, who ingested the drug and died as a result. Reif
pleaded guilty to distribution of heroin to a person under
the age of twenty-one. The offense carried a statutory
penalty of one to forty years' imprisonment. See
21 U.S.C. §§ 859, 841(a)(1), 841(b)(1)(C). In the
plea agreement, the government agreed to dismiss a more
serious charge of distribution of heroin resulting in death.
See id. § 841(a)(1), (b)(1)(C).
advisory sentencing guideline range for Reif s offense of
conviction was 15-21 months' imprisonment. The government
moved for an upward departure under the guidelines and an
upward variance from the guidelines under 18 U.S.C. §
3553(a), on the ground that Reif s offense resulted in death.
The district court observed that Reif had trafficked not only
heroin, but also other drugs, and "basically had a
pharmacy" from which he was "making available to
others controlled substances." The court explained that
the offense of conviction was "an extremely serious
crime" that required "a serious consequence,"
that the guideline range did not take into account the
victim's death, and that Reif s offense was "akin to
an involuntary manslaughter case." The court ultimately
sentenced Reif to 96 months' imprisonment, concluding
that it would reach "exactly the same sentence"
under either a guidelines departure or a variance from the
appeals and contends that the district court abused its
discretion in fashioning the sentence. He does not challenge
the district court's decision to sentence above the
advisory range, but he argues that the court failed to
provide adequate reasons for choosing a term of 96 months. We
conclude that the sentence is permissible as a departure
under the guidelines and that it is not unreasonable with
regard to the factors set forth in 18 U.S.C. § 3553(a).
the guidelines, the court may depart upward if death resulted
from the offense of conviction, USSG § 5K2.1, and to
reflect the actual seriousness of the offense based on
conduct underlying a charge dismissed as part of a plea
agreement, id. § 5K2.21. Both policy statements
apply here, and the court did not abuse its discretion in
selecting a 75-month upward departure. The policy statement
on death advises the court to "give consideration to
matters that would normally distinguish among levels of
homicide." Id. § 5K2.1. Here, the district
court found Reif's conduct most akin to involuntary
manslaughter, and sentenced him to the maximum punishment
available under the federal involuntary manslaughter statute.
See 18 U.S.C. § 1112(b). In considering the
dismissed charge of drug distribution resulting in death, the
court recognized that the statutory minimum sentence
for that offense would have been twenty years'
imprisonment, and that the advisory range of 15-21
months' imprisonment under-represented the actual
seriousness of Reif's offense conduct. In arriving at an
upward departure of 75 months, and a total guideline sentence
of 96 months' imprisonment, the court thus considered the
relevant factors under the applicable policy statements and
fashioned a sentence that bore a reasonable relationship to
those factors. There was no abuse of discretion.
also argues that the sentence is unreasonable with regard to
18 U.S.C. § 3553(a). We review reasonableness under a
deferential abuse-of-discretion standard, Gall v. United
States, 552 U.S. 38, 51 (2007), and because Reif's
sentence was consistent with the advisory guidelines (after a
permissible guidelines departure), we presume that it is
reasonable. See United States v. Brave Bull, 828
F.3d 735, 741 (8th Cir. 2016). Reif's principal complaint
is that the district court here fixed a longer term of
imprisonment than did the sentencing court in United
States v. Nossan, 647 F.3d 822 (8th Cir. 2011), where a
defendant who distributed heroin resulting in a death was
sentenced to 60 months' imprisonment. Id. at
825. That a 60-month term was reasonable in Nossan,
however, does not mean that 60 months is the only
reasonable term of imprisonment for a defendant whose
distribution of heroin results in death. District judges are
permitted to sentence within a range of reasonableness, and
they are not required to conform to decisions of other
sentencing judges in cases involving allegedly similar
offenders. When different judges arrive at different
reasonable sentences for similar offenders, there is no
principled basis for an appellate court to say that only one
of the sentences is appropriate. See United States
v. McElderry, 875 F.3d 863, 865 (8th Cir. 2017) (per
curiam). In this case, the district court noted Reif's
youth and acknowledged the hardship of addiction during
adolescence, but reasonably concluded that other factors such
as the seriousness of the offense and the need for deterrence
warranted a longer sentence than what Reif proposed.
judgment of the district court is affirmed.
The Honorable Jeffrey L. Viken, Chief
Judge, United States District Court for the District of ...