United States Court of Appeals

For the Eighth Circuit

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No. 21-3572

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Bart Stanley Kerns

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court 

for the Southern District of Iowa - Central

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Submitted: April 14, 2022

Filed: August 1, 2022 

[Unpublished]

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Before SMITH, Chief Judge, WOLLMAN and GRASZ, Circuit Judges. 

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PER CURIAM.

While on supervised release, Bart Kerns set off a firework that damaged an

Iowa bar. He was charged with criminal mischief in the second degree, but he entered

an Alford1plea to criminal mischief in the fourth degree. His probation officer filed

1North Carolina v. Alford, 400 U.S. 25 (1970).
a petition for revocation of his supervised release, which the district court2

 granted.

The court determined that Kerns committed a Grade B violation based on the amount

of loss he caused and sentenced him to 24 months’ imprisonment. He appeals his

sentence, arguing that the court erred in its violation-grade determination and that his

sentence was substantively unreasonable. We affirm.

I. Background

Kerns pleaded guilty to one count of being a felon in possession of a firearm

and was sentenced to 37 months’ imprisonment in November 2017. He began his 36-

month term of supervised release in June 2020. He twice violated the terms of his

supervision3 before June 2021 when he committed the instant violation. His probation

officer’s petition to modify his conditions of supervision described the violation as

“New Arrest–2nd Degree Criminal Mischief.” R. Doc. 67, at 1. Kerns waived his right

to a modification hearing and indicated that he “[did] not dispute that [he] ha[s]

violated the conditions of [his] supervision, as outlined in the . . . petition.” Id. at 3.

The petition stated that “Kerns . . . set off an exploding firework which caused

approximately $1[,]500 in damage.” Id. at 1. The district court granted the petition to

modify Kerns’s conditions of supervision in July 2021, and he was thereafter required

to enter a residential reentry program. 

In September 2021, Kerns entered an Alford plea to the lesser included charge

of criminal mischief in the fourth degree. The difference between the two offenses is 

principally the loss caused by the defendant’s behavior. Criminal mischief in the

2The Honorable James E. Gritzner, United States District Judge for the

Southern District of Iowa.

3

In November 2020, Kerns was cited by the Iowa Department of Natural

Resources for illegal taking of a deer using a crossbow. His crossbow was removed

but no modification was made to his release conditions. In January 2021, he tested

positive for cocaine and methamphetamine. He was subjected to increased drug

testing and monitoring and additional substance abuse treatment.

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second degree involves loss exceeding $1,500 but not exceeding $10,000. Iowa Code

§ 716.4(1)(a). Criminal mischief in the fourth degree involves loss exceeding $300

but not exceeding $750. Id. § 716.6(1)(a)(1). After Kerns’s plea, his probation officer

filed a petition to revoke his supervised release, which the district court granted. 

At the revocation hearing, the government argued that Kerns committed a

Grade B violation. Grade B violations involve conduct that can result in a sentence

of imprisonment “exceeding one year.” U.S.S.G. § 7B1.1(a)(2). The government

based its argument on Kerns’s agreement to pay $1,500 in restitution, the minimum

amount of loss involved in second-degree criminal mischief. Had he been convicted

of second-degree criminal mischief, he would have been subject to up to five years’

imprisonment. See Iowa Code § 902.9(1)(e). The government submitted the following

as evidence: (1) the state complaint, which alleged that the “[o]ffense [c]ommitted”

was “2nd degree criminal mischief,” R. Doc. 86-1, at 1; (2) a supporting affidavit,

which stated, that “[t]he explosion caused $1,500 [of] damage to The Talk Shop

Lounge,” id. at 2; (3) the plea petition, which stated that he entered an Alford plea to

criminal mischief in the fourth degree and that he agreed to “[p]ay up front $1[,]500

in restitution,” R. Doc. 86-2, at 2; and (4) the judgment conveying the same. 

In reply, Kerns argued that he only committed a Grade C violation. Grade C

violations involve conduct that can result in a sentence of imprisonment of one year

or less, or “a violation of any other condition of supervision.” U.S.S.G. § 7B1.1(a)(3).

Kerns relied on his entry of an Alford plea to criminal mischief in the fourth degree

in support of his argument. He could have been punished by no more than one year’s

imprisonment for fourth-degree criminal mischief. Iowa Code § 903.1(1)(b). 

Based on the record before it, the district court concluded that Kerns committed

a Grade B violation. Kerns did not object. With a Grade B violation and criminal

history category of V, the court calculated his Guidelines range between 18 to 24

months’ imprisonment. Kerns requested a downward variance to a sentence of 7

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months’ imprisonment. The court declined the request and imposed a term of 24

months’ imprisonment at the high end of the Guidelines range. The court also stated

that it would impose that term “under either [G]uideline[s] calculation”—whether it

determined he committed a Grade B violation or a Grade C violation. R. Doc. 92, at

13. Kerns did not object to the sentence.

II. Discussion

A. Procedural Error

Kerns first challenges the district court’s determination that he committed a

Grade B violation. “We review the district court’s decision to revoke supervised

release for an abuse of discretion and any factual determinations underpinning the

revocation . . . for clear error.” United States v. Daye, 4 F.4th 698, 700 (8th Cir.

2021). “We will find clear error only when we are left ‘with the definite and firm

conviction that a mistake has been committed.’” United States v. Lalley, 257 F.3d

751, 758 (8th Cir. 2001) (quoting United States v. Williams, 605 F.3d 556, 570 (8th

Cir. 2010).

Kerns argues that he did not commit a Grade B violation because the offense

to which he pleaded—criminal mischief in the fourth degree—was a misdemeanor

that carried a maximum term of imprisonment that is shorter than what is required for

classification as a Grade B violation. He argues that the state complaint that the

government entered as an exhibit “d[id] not indicate what was damaged or how the

damage was estimated.” Appellant’s Br. at 9. But “[t]he grade of violation does not

depend upon the conduct that is the subject of criminal charges or of which the

defendant is convicted in a criminal proceeding. Rather, the grade of the violation is

to be based on the defendant’s actual conduct.” U.S.S.G. § 7B1.1 cmt. n.1. 

The district court did not clearly err by determining that Kerns committed a

Grade B violation given that he indicated that he did not dispute the allegations in the

modification petition and that he agreed to pay $1,500 in compensation for loss. See

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United States v. Grady, 772 F. App’x 390, 391 (8th Cir. 2019) (unpublished per

curiam) (“[T]he district court did not plainly err in categorizing two of [the

defendant’s] supervised-release violations as Grade A—notwithstanding [his]

assertions to the contrary—in light of his admission at the revocation hearing, which

was supported by the allegations in the probation officer’s petition.”). Based on these

facts, we are not definitely and firmly convinced that the district court committed a

mistake. See Lalley, 257 F.3d at 758.

Kerns also essentially challenges the sufficiency of the evidence by contending

that “the [g]overnment should have called [the law enforcement officer] who

investigated the explosion,” that “the [g]overnment could have provided an exhibit

indicating what was damaged . . . or an estimation on the cost of repair,” and that “the

[g]overnment could have called eyewitnesses to explain what was damaged.”

Appellant’s Br. at 11. The record evidence was sufficient. We hold that the district

court did not clearly err by determining that Kerns committed a Grade B violation.

B. Substantive Reasonableness

Kerns also challenges the substantive reasonableness of the district court’s

sentence. “We review the substantive reasonableness of a revocation sentence under

the abuse-of-discretion standard.” United States v. Beran, 751 F.3d 872, 875 (8th Cir.

2014). “Sentences within the advisory Guidelines range are presumed reasonable,

however. This presumption is rebuttable, but the burden is on a defendant to show his

sentence should have been lower considering the factors enumerated in 18 U.S.C. §

3553(a).” United States v. Herra-Herra, 860 F.3d 1128, 1132 (8th Cir. 2017)

(citations omitted). “A district court abuses its discretion and imposes an

unreasonable sentence when it fails to consider a relevant and significant factor, gives

significant weight to an irrelevant or improper factor, or considers the appropriate

factors but commits a clear error of judgment in weighing those factors.” United

States v. Miner, 544 F.3d 930, 932 (8th Cir. 2008). “A district court does not impose

a substantively unreasonable sentence merely because the district court attributes less

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weight to a defendant’s personal problems.” United States v. Gant, 663 F.3d 1023,

1032 (8th Cir. 2011).

Kerns has not rebutted the presumption that his within-Guidelines-range

sentence is reasonable. See Herra-Herra, 860 F.3d at 1132. He argues that the district

court failed to properly consider whether his sentence was greater than necessary

because he had served his initial 37-month sentence for being a felon in possession

of a firearm. He also notes that the instant supervision violation was the only one

resulting in a conviction. He acknowledged, however, that “[a]fter being released

from his term of incarceration in 2020, [he] has had two . . . [other] violations.”

Appellant’s Br. at 16. Before pronouncing its sentence the court noted Kerns’s “very

poor performance” on supervision and the court’s concern for the respect of the law.

R. Doc. 92, at 13. 

Lastly, Kerns argues that the district court failed to properly consider his

history and characteristics—specifically, “his severe mental health issues.”

Appellant’s Br. at 17. His argument fails because the court heard his argument that

“he will be able to more meaningfully engage in mental health treatment under

supervised release,” as opposed to while he is incarcerated. R. Doc. 92, at 9. The

court also inquired whether “he was getting some [medical] attention for [his] mental

health.” Id. at 10. The court considered his mental health issues but chose to accord

them less weight than Kerns would prefer. The court was within its discretion to give

his mental condition the weight it believed the evidence merited. See Gant, 663 F.3d

at 1032. We hold that the district court’s sentence was substantively reasonable. 

III. Conclusion

Accordingly, we affirm the district court’s judgment.

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