United States Court of Appeals

For the Eighth Circuit

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No. 16-3987

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Dylan W. Stone

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: September 18, 2017

 Filed: October 17, 2017 

[Published]

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Before COLLOTON, BENTON, and KELLY, Circuit Judges.

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PER CURIAM.

Dylan W. Stone pleaded guilty to being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1). The district court adopted the uncontested

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The Honorable Greg Kays, Chief Judge, United States District Court for the

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Western District of Missouri.
calculations of Stone’s offense level and criminal history in the presentence report,

which resulted in an advisory Sentencing Guidelines range of 27–33 months. Citing

a number of factors, the court sentenced Stone to an above-Guidelinessentence of 60

months of imprisonment. Stone appeals, arguing the district court erred in imposing

an upward variance.

We “review all sentences—whether inside, just outside, orsignificantlyoutside

the Guidelines range—under a deferential abuse-of-discretion standard.” Gall v.

United States, 552 U.S. 38, 41 (2007). Stone argues that the district court abused its

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discretion in two ways: (1) by considering improper factors in determining his

sentence; and (2) by engaging in an unreasonable weighing of the statutory

sentencing factors listed in 18 U.S.C. § 3553(a), leading to an unjustifiably excessive

sentence.

Stone alleges the district court considered improper factors when, according

to Stone, it declared “categorical rules” that required imposing longer sentences for

federal, rather than state, crimes and imposing longer sentences for a greater history

of recidivism. Such a reading of the transcript, however, takes out of context two

statements the court made during a longer sentencing colloquy. Read in context, it

is apparent that the district court was not relying on categorical rules, but instead was

making individualized observations about Stone’s past conduct and the need for

deterrence in light of Stone’s history and personal characteristics. The “need for

The government argues that Stone alleges “procedural” as well as 2

“substantive” errors, and that the unobjected-to procedural errorsshould be reviewed

under the even-more-deferential plain error standard. Because we conclude Stone is

not entitled to relief under either standard, we need not decide which standard of

review to apply. See United States v. Kouangvan, 844 F.3d 996, 999–1000 (8th Cir.

2017) (recognizing “apparent conflict” between cases that categorize consideration

of improper factor as a procedural error and cases categorizing it as a challenge to

substantive reasonableness, but declining to resolve the conflict); United States v.

O’Connor, 567 F.3d 395, 397 & n.3 (8th Cir. 2009) (same).

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deterrence” is an authorized—not an improper—statutoryfactor, and the district court

did not err in taking it into consideration. See 18 U.S.C. § 3553(a)(2)(B).

Similarly, we are unpersuaded by Stone’s contention that the district court

improperly weighed the § 3553(a) factors. When varying from the Guidelines, “[t]he

district court must ‘consider the extent of the deviation and ensure that the

justification issufficiently compelling to support the degree ofthe variance.’” United

States v. Martinez, 821 F.3d 984, 989 (8th Cir. 2016) (quoting United States v.

Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc)). However, “‘extraordinary

circumstances’ are not needed to justify a sentence outside the guideline range,” even

if the district court is varying upward. United States v. Hummingbird, 743 F.3d 636,

638 (8th Cir. 2014). “The district court has wide latitude to weigh the § 3553(a)

factors in each case and assign some factors greater weight than othersin determining

an appropriate sentence.” United States v. Bridges, 569 F.3d 374, 379 (8th Cir.

2009). 

Here, the district court specifically addressed a number ofthe § 3553(a) factors. 

First, it looked at Stone’s history and characteristics —giving specific attention to the

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his employment history and lack of success when previously placed on supervision. 

The court then discussed the need to protect the public fromfurther crimes, which the

court described as “something that I think is very real” with respect to Stone. And,

as noted, the court addressed the need for deterrence. The district court also expressly

acknowledged that Stone had accepted responsibility for his offense and was honest

with the court, which “help[ed]” him from receiving an even longer sentence. These

considerations are adequate to support an upward variance in this case. See Gall, 552

Although the Guidelines range “already account[s] for . . . prior convictions” 3

and the defendant’s criminal history, see Martinez, 821 F.3d at 989, it is not

procedural error to consider thisfactor again in determining the appropriate sentence,

see Hummingbird, 743 F.3d at 637 (“[T]he court is required to consider these factors

under 18 U.S.C. § 3553(a)(1).”).

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U.S. at 51 (“[We] must give due deference to the district court’s decision that the

§ 3553(a) factors, on a whole, justify the extent of the variance.”).

The judgment of the district court is affirmed.

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