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The Honorable Ortrie D. Smith, United States District Judge for the Western

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 03-4038

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* Western District of Missouri.

Micah E. Tyson, *

* [PUBLISHED]

Appellant. * 

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Submitted: July 22, 2004

Filed: July 12, 2005

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Before MELLOY, LAY, and COLLOTON, Circuit Judges.

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PER CURIAM.

Micah Tyson pled guilty to unlawful possession of a firearm as a previously

convicted felon and was sentenced to five years’ probation on July 9, 2003. On

October 15, 2003, the government moved to revoke Tyson’s probation on the ground

that he had violated its terms by using cocaine, assaulting his fiancee, and failing to

report as required to his probation officer. The district court1

 revoked Tyson’s

probation and imposed a sentence of 15 months’ imprisonment and three years’

supervised release.
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Tyson’s counsel has moved to withdraw and filed a brief under Anders v.

California, 386 U.S. 738 (1967), arguing that the court erred in sentencing Tyson to

a term of imprisonment that exceeded the 5-11 month sentence recommended by

Chapter 7 of the United States Sentencing Guidelines. See USSG § 7B1.4. Prior to

the Supreme Court’s decision in United States v. Booker, 125 S. Ct. 738 (2005), the

governing statute provided that we were to determine whether a sentence imposed for

revocation of supervised release was “plainly unreasonable,” 18 U.S.C. § 3742(e)(4),

and we reviewed a district court’s decision to sentence a defendant to a longer term

than suggested by Chapter 7 of the guidelines for abuse of discretion. United States

v. White Face, 383 F.3d 733, 737 (8th Cir. 2004). In Booker, the Supreme Court

excised § 3742(e) and directed that the courts of appeals should review sentencing

decisions for “unreasonableness.” 125 S. Ct. at 767. We observed in United States

v. Edwards, 400 F.3d 591 (8th Cir. 2005) (per curiam), that the effect of Booker on

review of revocation sentences was “far less dramatic” than on review of other

sentences, because the Chapter 7 guidelines “were considered advisory even before

the Court’s decision in Booker.” Id. at 592. Indeed, the Supreme Court cited our

decision in White Face as an example of “judicial familiarity” with a

“reasonableness” standard of review. 125 S. Ct. at 766.

Although our pre-Booker decision in White Face employed a standard of

review of “abuse of discretion” in the context of a statute that called for us to

determine whether a sentence was “plainly unreasonable,” 383 F.3d at 737, we think

it is more consistent with Booker to review revocation sentences after Booker under

the “unreasonableness” standard announced in that opinion. See Edwards, 400 F.3d

at 593. In this case, the district court considered the recommended guideline range

but agreed with the government’s contention that the range was not adequate to deter

criminal conduct or protect the public from further crimes. Tyson’s criminal history

included an assault on his fiancee prior to the incident cited in the probation violation

report. The court expressed concern that “someone is really going to get hurt unless

this cycle changes,” and concluded that “there has to be some interruption of the
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relationship” between Tyson and his fiancee. The court stated its hope that Tyson,

while in custody, could “begin the process of trying to sort out what it is you are

angry about,” and imposed a term of imprisonment of 15 months. This sentence was

well within the statutory limits and grounded in legitimate concerns about Tyson’s

domestic violence. We therefore conclude that the sentence was not unreasonable.

Independently reviewing the record under Penson v. Ohio, 488 U.S. 75, 80

(1988), we find no other nonfrivolous issues. Accordingly, we affirm, and we grant

counsel’s motion to withdraw on the condition that counsel complies with Part V of

this court’s Amended Criminal Justice Act Plan.

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