United States Court of Appeals

For the Eighth Circuit

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No. 15-1064

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Kelvin Maximillion Stanford

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Northern District of Iowa - Cedar Rapids

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 Submitted: March 14, 2016

 Filed: May 19, 2016

[Unpublished]

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Before MURPHY, BEAM, and GRUENDER, Circuit Judges.

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PER CURIAM.

Kelvin Stanford appeals from the district court’s1 decision revoking his

supervised release and imposing a sentence of 18 months’ imprisonment and three

1

The Honorable Linda R. Reade, Chief Judge, United States District Court for

the Northern District of Iowa.
years’supervised release. He contends that the prison sentence was unreasonable. We

affirm.

In July 2012, Stanford pleaded guilty to knowing possession with intent to

distribute marijuana, see 21 U.S.C. § 841(a)(1), and knowing possession of a firearm

by an unlawful user of a controlled substance,see 18 U.S.C. § 922(g)(3). The district

court sentenced him to 24 months’ imprisonment followed by a three-year term of

supervised release. Less than three months after his release from prison, Stanford was

stopped by the highway patrol while he was driving in Utah. Because Stanford’s

vehicle smelled of marijuana, the officer conducted a search. The officer found over

eleven pounds of marijuana divided into twenty-two eight-ounce packages inside

Stanford’s trunk. The officer took Stanford into custody, and Stanford was charged

with possession of a controlled substance, possession of drug paraphernalia, and

failure to signal a lane change. Shortly thereafter, the probation office petitioned the

district court to revoke Stanford’s supervised release. The petition described the

incident and noted that Stanford did not have permission to travel outside of the

judicial district in which he was being supervised.

At the revocation hearing, Stanford admitted to the violations related to the

Utah incident. The statutory maximum sentence was two years’ imprisonment. See

18 U.S.C. § 3583(e)(3). Stanford’s advisory guidelines range was 4-10 months’

imprisonment. The Government argued that the court should vary upward to impose

a sentence of 18 months’ imprisonment. In support of this position, the Government

explained that Stanford’s conduct in Utah was very similar to the conduct that led to

hisinitial conviction and that a longersentence was necessary to “teach the defendant

[the] lesson that he failed to learn” during his first term of imprisonment. Stanford,

in turn, contended that the court should impose a prison sentence within the advisory

guidelines range. He argued that his offense was nonviolent, he accepted

responsibility for his actions, he wastaking classes, and he complied with drug testing

during his first three months of supervised release. The court sentenced Stanford to

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18 months’ imprisonment followed by three years of supervised release, noting that

the prison term would be consecutive to any punishment imposed for the offense in

Utah. The court chose this sentence because Stanford “violated the trust of th[e] Court

by, within about 3 months of his release from imprisonment, committing almost an

identical crime” to the crime underlying his initial conviction. The court also noted

that Stanford “ch[ose] to go right back into criminal activity” despite having an

employment record and skills.

On appeal, Stanford argues that the 18-month prison sentence imposed by the

district court was unreasonable. We review a district court’s revocation sentencing

decision using the same standards we apply to initial sentencing decisions. United

States v. Cotton, 399 F.3d 913, 916 (8th Cir. 2005). We thus review for abuse of

discretion. United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc). 

In conducting this review, we search first for procedural errors, such as “failing to

calculate (or improperly calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on

clearly erroneous facts, or failing to adequately explain the chosen

sentence—including an explanation for any deviation fromthe Guidelinesrange.” Id.

(quoting Gall v. United States, 552 U.S. 38, 51 (2007)); United States v. Miller, 557

F.3d 910, 916 (8th Cir. 2009). In the absence of procedural error, our court considers

the substantive reasonableness of the sentence. Feemster, 572 F.3d at 461. In this

review, we “take into account the totality of the circumstances, including the extent

of any variance from the Guidelines range.” Id. (quoting Gall, 552 U.S. at 51). “A

sentence issubstantively unreasonable ‘if the district court failsto 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. Boelter, 806

F.3d 1134, 1136 (8th Cir. 2015) (per curiam) (quoting United States v. Lozoya, 623

F.3d 624, 626 (8th Cir. 2010)).

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Stanford does not raise any allegation of procedural error. Instead, he contends

that the prison sentence was substantively unreasonable because the court committed

a clear error of judgment when weighing the § 3553(a) factors. According to

Stanford, the court did not consider adequately (1) his record of good conduct in

prison and during the first three months of supervised release, (2) the possibility that

he would face punishment in Utah as a consequence of his offense, and

(3) alternatives to imprisonment, such as a residential reentry center, that would be

more effective in deterring Stanford from resorting to criminal conduct in the future. 

The district court explained at sentencing that it considered the statutory factors and

the various sentencing options that it could impose. See United States v. Townsend,

617 F.3d 991, 994 (8th Cir. 2010) (per curiam) (“Although a district court is required

to consider each of the § 3553(a) factors in determining the proper sentence to impose,

it need not ‘categorically rehearse each of the [§] 3553(a) factors on the record when

it imposes a sentence as long as it is clear that they were considered.’” (quoting United

States v. Dieken, 432 F.3d 906, 909 (8th Cir. 2006) (alteration in original))). While

our court may not apply a presumption of reasonableness when a sentence falls

outside the guidelines range, 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.” 

Feemster, 572 F.3d at 461-62 (quoting Gall, 552 U.S. at 51). “[I]t will be the unusual

case when we reverse a district court sentence—whether within, above, or below the

applicable Guidelines range—as substantively unreasonable.” Id. at 464 (quoting

United States v. Gardellini, 545 F.3d 1089, 1090 (D.C. Cir. 2008)).

Applying the deference due under Feemster, we conclude that the court did not

commit a clear error of judgment when weighing the relevant factors. The district

court sentenced Stanford to 18 months’ imprisonment, stating that a lower sentence

was not appropriate because Stanford had “violated the trust” of the court by, within

only three months of his release from prison, committing an offense that was very

similar to the offense underlying his initial conviction. The court further noted that

Stanford chose to “go right back into criminal activity” despite having other skills that

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would allow him to support himself. Under 18 U.S.C. § 3583(e), factors such as

deterrence and the need to protect the public from further crimes of the defendant

must guide the district court’s revocation sentencing decision. See 18 U.S.C.

§ 3583(e) (citing 18 U.S.C. § 3553(a)(2)(B), (C)). We afford the district court wide

latitude to consider these and other relevant factors and to assign some factors greater

weight than others. United States v. Deering, 762 F.3d 783, 787 (8th Cir. 2014). A

district court does not abuse its discretion “[s]imply because [it] weigh[s] the relevant

factors more heavily than [the defendant] would prefer.” United States v. Richart, 662

F.3d 1037, 1054 (8th Cir. 2011). Based on the record, we conclude that the court did

not abuse its discretion when it weighed the stated factors more heavily than the

mitigating factors cited by Stanford.

We also reject Stanford’s contention that the 18-month prison sentence was

substantively unreasonable because the court determined that it would run

consecutively to any sentence imposed as a result of the charges in Utah. “The

decision to impose a consecutive or concurrent sentence upon revocation of

supervised release is committed to the sound discretion of the district court.” United

States v. Cotroneo, 89 F.3d 510, 512 (8th Cir. 1996). Here, Stanford’s recidivism

supported the court’s decision. See United States v. Kreitinger, 576 F.3d 500, 504-05

(8th Cir. 2009) (finding reasonable consecutive sentences for revocation and new

crimes committed while on supervised release because the defendant had “recidivist

tendencies”). We see no abuse of discretion. For the foregoing reasons, we conclude

that the sentence imposed by the district court was not unreasonable, and we affirm.

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