United States Court of Appeals

For the Eighth Circuit

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No. 18-3665

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Quentin L. Posey

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court 

for the Western District of Missouri - Kansas City

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 Submitted: November 11, 2019

Filed: February 12, 2020

[Unpublished] 

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Before SHEPHERD, GRASZ, and KOBES, Circuit Judges. 

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PER CURIAM.

Following the entry of his guilty plea to two counts of being a felon in

possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), the
district court1

 sentenced Quentin L. Posey to 192 months imprisonment. Posey

appeals, arguing the district court imposed a substantively unreasonable sentence. 

Having jurisdiction under 28 U.S.C. § 1291, we affirm. 

I.

In October 2016, Kansas City, Missouri police officers stopped a vehicle in

which Posey was a passenger. Upon exiting the vehicle, a firearm fell from Posey’s

pant leg. The officers also found 35 grams of marijuana, a digital scale, and several

sandwich bags near Posey’s seat. Posey was charged with being a felon in possession

of a firearm and was released on bond. In December 2016, while out on bond, Posey

was arrested as a suspect in a homicide investigation. At the time of this arrest, Posey

was in possession of a firearm, 28 grams of marijuana, and a digital scale. On

December 15, 2016, a superseding indictment charged Posey with two counts of

being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2). In March 2018, Posey pled guilty to both counts.

The presentence report (PSR) calculated a base offense level of 14 and applied

a four-level enhancement pursuant to USSG § 2K2.1(b)(6)(B) for possession of a

firearm in connection with the felony offense of marijuana distribution. Because

Posey committed additional offenses on pretrial release, the PSR did not recommend

a reduction for acceptance of responsibility. The PSR calculated Posey’s criminal

history category as Category IV based on several prior convictions, including one for

theft of public property. This conviction stemmed from Posey’s involvement in a

scheme, while serving in the United States Marine Corps, in which he diverted travel

reimbursement payments into his own account. For this conviction, Posey was

sentenced to 15 months imprisonment and 3 years of supervised release, which was

1The Honorable Greg Kays, United States District Judge for the Western

District of Missouri.

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later revoked after several supervised release violations. During the same year as his

theft conviction, Posey was also convicted in North Carolina state court of being an

accessory after the fact to both armed robbery and second degree kidnapping. He

received a 15 to 18 month sentence for these convictions. In addition to these felony

convictions, Posey has several misdemeanor convictions, including convictions for

resisting a public officer, assault, and child abuse. Based on Posey’s offense level

and criminal history score, the PSR calculated his United States Sentencing

Guidelines range as 41 to 51 months imprisonment for each count. After adopting

the Guidelines calculation, the district court varied upward and sentenced Posey to

two consecutive terms of 96 months imprisonment for a total of 192 months. This

appeal of the 192-month sentence followed. 

II.

Posey argues the district court imposed a substantively unreasonable sentence

because the nature of the instant offenses did not warrant such a significant upward

variance, the Guidelines range properly accounted for his criminal history, and there

were serious mitigating factors. “We review a sentence for substantive

reasonableness by applying an abuse-of-discretion standard.” United States v.

Moore, 565 F.3d 435, 437-38 (8th Cir. 2009). “A sentencing court abuses its

discretion if it fails to consider a relevant factor that should have received significant

weight, gives significant weight to an improper or irrelevant factor, or considers only

the appropriate factors but commits a clear error of judgment in weighing those

factors.” United States v. Watson, 480 F.3d 1175, 1177 (8th Cir. 2007). We presume

a sentence is substantively reasonable if it is within the Guidelines range, but we do

not presume a sentence is unreasonable if it is outside the Guidelines range. Rita v.

United States, 551 U.S. 338, 354-55 (2007). “If [the district judge] decides that an

outside-Guidelines sentence is warranted, he must consider the extent of the deviation

and ensure that the justification is sufficiently compelling to support the degree of the

variance.” Gall v. United States, 552 U.S. 38, 50 (2007).

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While the district court imposed a significant upward variance from Posey’s

Guidelines range, its justifications for doing so were sufficiently compelling to

support the variance. In light of Posey’s criminal history, the district court cited the

need to promote respect for the law, provide deterrence, and protect the public as

justifications for the variance. Nevertheless, Posey asserts that the extent of the

variance was not justified because the Guidelines range accounted for the vast

majority of Posey’s extensive criminal history. However, our case law “does not

prohibit courts from determining that the weight the Guidelines assigned to a

particular factor was insufficient, but rather counsels courts to take care in doing so.” 

United States v. Thorne, 896 F.3d 861, 865 (8th Cir. 2018) (per curiam) (rejecting

appellant’s reliance on United States v. Martinez, 821 F.3d 984 (8th Cir. 2016), to

argue that the court could not consider offense conduct, accounted for by the

Guidelines, in varying upward). “Indeed, we have stated repeatedly that factors that

have already been taken into account in calculating the advisory Guidelines range can

nevertheless form the basis of a variance.” Id. (internal quotation marks omitted). 

Here, in varying upward, the district court relied on factors not fully accounted

for by the Guidelines. See id. (finding variance “[wa]s supported by factors not

accounted for, either in full or in part, by the Guidelines”). In particular, the court

considered the fact that Posey committed his second felon-in-possession offense

while on pretrial release for the first felon-in-possession offense. The Guidelines

partially accounted for this second offense because the PSR denied Posey an

acceptance of responsibility reduction due to the fact he committed the second

offense while on pretrial release. However, when combined with Posey’s various

supervised release violations and resisting a public officer convictions, the district

court was justified in concluding that the denial of the reduction did not fully account

for the seriousness of the second offense, which demonstrated a continued lack of

respect for the law and public safety. Further, the district court considered the

leniency that Posey had been afforded when sentenced for his prior felony

convictions. For each conviction, Posey was sentenced to less than 2 years

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imprisonment. Based on the length of these sentences and Posey’s subsequent

commission of new offenses, the district court was justified in concluding Posey had

not been effectively deterred by his previous sentences. 

Posey also argues that the district court failed to weigh properly the nature of

the instant offenses and the mitigating factors. However, the sentencing transcript

demonstrates that the district court considered the nature of the felon-in-possession

offenses as well as Posey’s background. Notwithstanding these factors, the district

court found more significant Posey’s criminal history, which includes the special

circumstances noted above. “While the district court clearly ‘assign[ed] . . . greater

weight’ to [Posey’s criminal history] than it did to other factors, under § 3553(a), it

had ‘wide latitude’ to do so.” United States v. Wisecarver, 911 F.3d 554, 558 (8th

Cir. 2018) (first alteration and omission in original) (quoting United States v.

Maxwell, 664 F.3d 240, 247 (8th Cir. 2011)). We conclude that the district court did

not abuse its discretion in imposing a 192-month sentence.

The judgment is affirmed.

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