United States Court of Appeals

For the Eighth Circuit

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No. 16-4317

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Derrick D. West-Jones, also known as Derrick Jones

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the District of Nebraska - Omaha

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 Submitted: November 13, 2017

 Filed: January 25, 2018

[Unpublished]

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Before BENTON, SHEPHERD, and KELLY, Circuit Judges.

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PER CURIAM. 

Having completed his term of imprisonment for conspiracy to distribute cocaine

base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1) and felon in possession of a

firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), Derrick West-Jones twice

violated the conditions of his supervised release. The first amended violation petition

was filed on May 4, 2016 and alleged that West-Jones assaulted his girlfriend and
used marijuana. The assault allegation was later dismissed, and the district court

sentenced West-Jones to time served for the drug use violation—one day in jail—to

be followed by the original term of supervised release. The second violation petition

was filed on September 2, 2016 and alleged that West-Jones forcibly entered an

apartment, causing injury to its occupant, and tested positive for marijuana on five

occasions. Once again, the other allegations were dismissed, and West-Jones admitted

to the drug use. This time the same district judge1

 sentenced him to 14 months

imprisonment for the Grade C violation—the high end of the 8 to 14 months

recommended by the Sentencing Guidelines—and four years supervised release. 

USSG § 7B1.4(a).

West-Jones appeals his sentence, claiming that the district court was improperly

influenced by the dismissed allegations against him, that the court failed to adequately

explain its reasoning, and that the sentence is substantively unreasonable. We affirm. 

Because West-Jones did not raise these objections in the district court, we

review the procedural challenges for plain error. United States v. Miller, 557 F.3d

910, 916 (8th Cir. 2009). “To establish plain error, [West-Jones] must prove that (1)

there was error, (2) the error was plain, and (3) the error affected his substantial

rights.” Id. 

“[A] district court commits procedural error . . . by basing a sentence on

unproven, disputed allegations rather than facts.” United States v. Richey, 758 F.3d

999, 1002 (8th Cir. 2014). Here, we find no evidence that the district court considered

the dismissed allegations in determining West-Jones’s sentence. At the revocation

hearing, the court referred only to the drug use violation and specifically stated that

1

The Honorable Lyle E. Strom, United States District Judge for the District of

Nebraska. 

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it reviewed the amended revocation worksheet. The court then sentenced West-Jones

within the Guidelines range for the Grade C violation. 

West-Jones claims the length of his sentence indicates the court must have

taken the dismissed allegations into account. On the contrary, the district court had

ample reason for imposing a sentence at the high end of the Guidelines range. Upon

receiving leniency for his first violation, West-Jones resumed his marijuana use

shortly thereafter. See United States v. Hum, 766 F.3d 925, 928 (8th Cir. 2014)

(finding repeated violations after leniency relevant to sentencing). Moreover, because

the same judge presided over West-Jones’s original sentencing and his revocation

hearings, the court was well aware of West-Jones’s history and characteristics. See

Miller, 557 F.3d at 918. 

Even assuming the court plainly erred by offering an inadequate explanation for

the sentence, we find the sentence imposed did not violate West-Jones’s substantial

rights: West-Jones admitted to violating the conditions of his supervised release, the

sentence imposed was within the Guidelines range for that violation, and it did not

exceed the statutory maximum. USSG § 7B1.4(a) (setting advisory Guideline range

of 8 to 14 months imprisonment); 18 U.S.C. 3583(e)(3) (setting statutory maximum

of 36 months imprisonment); cf. United States v. Franklin, 397 F.3d 604, 607 (8th Cir.

2005).

As to West-Jones’s claim that the sentence is substantively unreasonable, we

find that—based on the reasons above—the district court did not abuse its discretion

by imposing a sentence within the Guidelines range. See Miller, 557 F.3d at 916

(standard of review); USSG § 7B1.4(a) (range of imprisonment for Grade C

violation); United States v. Petreikis, 551 F.3d 822, 824 (8th Cir. 2009) (applying

presumption of substantive reasonableness to revocation sentence within Guidelines

range). 

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We therefore affirm West-Jones’s sentence. 

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