United States Court of Appeals

For the Eighth Circuit

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No. 14-3409

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Timothy Rush

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: November 16, 2015

 Filed: January 22, 2016

[Unpublished]

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Before SMITH, BYE, and BENTON, Circuit Judges.

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PER CURIAM.

Timothy L. Rush pled guilty to one count of possessing a firearm and

ammunition while an unlawful user of a controlled substance, and one count of

possessing a firearm and ammunition as a felon, in violation of 18 U.S.C. §§

922(g)(3), 922(g)(1), and 924(a)(2). The district court sentencedRush to 60 months’ 1

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

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the Northern District of Iowa.
imprisonment. Rush appeals his sentence. Having jurisdiction under 28 U.S.C. §

1291, this court affirms.

Rush was an unlawful user of marijuana when officers patted him down and

seized from his waist a Beretta pistol (which he admitted stealing). Three years later,

officersresponded to a report of a man with a gun. Rush matched the description and

fled when officers approached him. Running away, he threw down a .380 pistol

(which he admitted taking without the owner’s consent). The district court granted

an upward departure, increasing the Guideline range from 37-46 months to 57-71

months. The court sentenced Rush to concurrent 60-month sentencesfor each count.

Rush asserts no procedural error. See Gall v. United States, 552 U.S. 38, 51

(2007) (the appellate court “must first ensure that the district court committed no

significant procedural error”). This court reviews “the substantive reasonableness of

the sentence [] under an abuse-of-discretion standard.” Id. An abuse of discretion

happens if a district court “(1) fails to consider a relevant factor that should have

received significant weight; (2) gives significant weight to an improper or irrelevant

factor; or (3) considers only the appropriate factors but in weighing those factors

commits a clear error of judgment.” United States v. Feemster, 572 F.3d 455, 461

(8th Cir. 2009) (en banc) (internal quotations omitted). 

Rush primarily attacks the upward departure. The Government counters that

any departure error is harmless because the district court said it would impose the

same sentence as a variance under 18 U.S.C. § 3553(a). Rush invokes United States

v. Davis, 690 F.3d 912, 929 (8th Cir. 2012), vacated, 133 S.Ct. 2852 (2013) (vacating

in light of Alleyne v. United States, 133 S.Ct. 2151, 2155 (2013)), aff'd, 736 F.3d 783,

785 (8th Cir. 2013). In Davis, the district court failed to retroactively apply the Fair

Sentencing Act. Davis, 690 F.3d at 928. This court initially found that error harmless

because “Davis also fails to point to anything suggesting the district court would

impose a different sentence on remand.” Id. at 929. On remand from the Supreme

Court, this court again affirmed the sentence. Davis, 736 F.3d at 785. This court

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found harmless any Alleyne error because the district court did not base the sentence

on the mandatory minimum and closely analyzed the section 3553(a) factors. Id.

Similarly here, any error in departing under the Guidelines was harmless. See

United States v. Grandon, 714 F.3d 1093, 1098 (8th Cir. 2013) (“Because we

conclude the district court did not abuse its substantial discretion in varying upward

to 132 months imprisonment, any error in alternatively imposing an upward departure

would be harmless because the district court would have imposed the same sentence

absent the error.”) (internal quotations omitted). The district court “carefully

consider[ed] each and every [section 3553(a)] factor” and varied based on Rush’s

serious criminal history, the likelihood of recidivism, and the danger to the

community. The court cited “lenient treatment by the state courts” that failed to

change Rush’s behavior, Rush’s “complete disrespect for the laws and for the

individuals who enforce the laws,” and Rush’s “usual thing” of running from police. 

The court emphasized Rush’s history of possessing stolen and defaced

firearms—including a sawed-off shotgun—as well as his 14 criminal offenses as an

adult. The district court considered the nature and circumstances of the offense,

highlighting the possession of at least one stolen firearm. The district court did not

abuse its discretion in varying upward by fourteenmonths fromthe original Guideline

range of 37-46 months. See United States v. Bridges, 569 F.3d 374, 379 (8th Cir.

2009) (“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.”). 

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The judgment is affirmed.

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