United States Court of Appeals

For the Eighth Circuit

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No. 13-1923

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Dshaun J. Butler

lllllllllllllllllllll Defendant - 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 18, 2013

 Filed: February 26, 2014 

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Before RILEY, Chief Judge, MELLOY and KELLY, Circuit Judges.

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RILEY, Chief Judge.

Dshaun J. Butler pled guilty to being a felon in possession of a firearm in

violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Butler appeals the sentence the

district court1

 imposed, arguing the district court “erred procedurally by failing to

1

The Honorable David Gregory Kays became Chief Judge of the United States

District Court for the Western District of Missouri on January 4, 2014.
adequately explain its basis” for varying upward from Butler’s advisory United States

Sentencing Guidelines (Guidelines) range. We disagree and affirm. 

I. BACKGROUND

On February 8, 2012, Butler pled guilty to being a felon in possession of a

firearm. Before sentencing, the United States Probation Office prepared a presentence

investigation report calculating an advisory Guidelines range of 46 to 57 months

imprisonment (level 17, category V). Butler objected to the inclusion of a certain state

conviction in his criminal history calculation because that conviction was vacated and

subject to de novo review in state court. The district court overruled Butler’s

objection and sentenced Butler to 57 months imprisonment. In imposing Butler’s

sentence, the district court stated it considered varying upward, but determined 57

months was the appropriate sentence for Butler based upon the district court’s analysis

of the 18 U.S.C. § 3553(a) sentencing factors. Butler timely appealed his sentence.

While Butler’s initial appeal was pending, we granted his unopposed motion

for remand to the district court for resentencing in light of the state court’s dismissal

of the contested conviction. On remand, the district court—accounting for the state

court dismissal—recalculated Butler’s advisory Guidelines range to be 37 to 46

months imprisonment (level 17, category IV). After considering Butler’s arguments

and the lower advisory Guidelines range, the district court varied upward and again

sentenced Butler to 57 months imprisonment based upon the 18 U.S.C. § 3553(a)

sentencing factors. Butler appeals.

II. DISCUSSION

“After settling on the appropriate 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); see

also 18 U.S.C. § 3553(c) (“The court, at the time of sentencing, shall state in open

court the reasons for its imposition of the particular sentence.”). “[F]ailing to

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adequately explain the chosen sentence—including an explanation for any deviation

from the Guidelines range”—constitutes procedural error. Gall, 552 U.S. at 51. 

Butler argues the district court committed procedural error at resentencing by

failing “to adequately explain its basis for imposing the same sentence despite

[Butler’s] reduced guideline range.” In Butler’s view, his receipt of the same sentence

on remand “create[s] an impression that [he] was sentenced more harshly following

his successful appeal.” Because Butler did not raise this objection at sentencing, we

review for plain error. See United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005)

(en banc); Fed. R. Crim. P. 52(b). “Under plain error review, the defendant must

show: (1) an error; (2) that is plain; and (3) that affects substantial rights.” United

States v. Vaughn, 519 F.3d 802, 804 (8th Cir. 2008). The “appellate court may then

exercise its discretion to notice a forfeited error . . . if . . . the error seriously affects

the fairness, integrity, or public reputation of judicial proceedings.” Johnson v. United

States, 520 U.S. 461, 467 (1997) (quoting United States v. Olano, 507 U.S. 725, 732

(1993)) (internal marks omitted). 

Having thoroughly reviewed the record, we are satisfied the district court

committed no error, plain or otherwise, in imposing or explaining Butler’s sentence. 

“In explaining the sentence the district court need only ‘set forth enough to satisfy the

appellate court that [the district court] has considered the parties’ arguments and has

a reasoned basis for exercising [its] own legal decisionmaking authority.’” United

States v. Moore, 565 F.3d 435, 437 (8th Cir. 2009) (quoting Rita v. United States, 551

U.S. 338, 356 (2007)). The district court did that and more. 

After reviewing the record from the first sentencing and considering the parties’

respective arguments regarding the appropriate sentence on remand, the district court

articulated specific reasons for varying upward and imposing the same 57-month

sentence, “even though the guidelines ha[d] lessened for [Butler].” In imposing

Butler’s sentence on remand, the district court expressly reconsidered all of the 18

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U.S.C. § 3553(a) sentencing factors as applied to Butler, including Butler’s violent

criminal history, lack of impulse control, failure to contribute to society or support his

children, and his “fundamental lack of respect for law.” The district court also

considered the nature of Butler’s crime, the need for deterrence, and the need to

protect the public. The district court then concluded 57 months

imprisonment—though now an upward variance from the Guidelines—remained the

appropriate sentence because the district court’s reassessment of the 18 U.S.C.

§ 3553(a) factors “came out the same” as its analysis for the initial sentencing. No

further explanation was required. 

And there is absolutely nothing in the record to “create an impression” that the

district court varied upward in retaliation for Butler appealing his initial sentence. To

the contrary, at Butler’s initial sentencing, the district court considered varying

upward from the advisory Guidelines range based on its thorough analysis of the

18 U.S.C. § 3553(a) factors, but determined 57 months was the appropriate sentence

to meet the goals of sentencing under the circumstances. That the district court

reached the same conclusion and imposed the same sentence based upon its

reassessment of those same statutory factors following remand does not suggest

Butler’s resentencing was retaliatory or otherwise unfair. 

III. CONCLUSION 

We affirm the judgment of the district court. 

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