United States Court of Appeals

For the Eighth Circuit

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No. 17-1911

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Kevin Murphy

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: November 17, 2017

 Filed: January 25, 2018

[Published]

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Before COLLOTON and GRUENDER, Circuit Judges, and READE,1

 District

Judge.

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READE, District Judge.

1

The Honorable Linda R. Reade, United States District Judge for the Northern

District of Iowa, sitting by designation. 
Kevin Murphy pleaded guilty to one count of bank robbery, in violation of 18

U.S.C. § 2113(a). At sentencing, the district court2

 varied upward from the Guidelines

range and sentenced Murphy to 160 months’ imprisonment. Murphy appeals the

sentence, arguing that it is substantively unreasonable because the district court gave

undue weight to his “past.” We affirm. 

I.

The uncontested portions of the presentence investigation report calculated a

total offense level of 19 and a criminal history category of II, for an advisory

Guidelines range of 33 to 41 months. The district court considered the sentencing

factors at 18 U.S.C. § 3553(a) and determined that an upward variance to 160 months’

imprisonment was warranted. After acknowledging that Murphy had taken

responsibility for his actions and had a support system, the district court noted the

inherent danger posed by a bank robbery and based its upward variance primarily on

Murphy’s criminal history. Murphy’s criminal history included two prior convictions

for bank robbery, only one of which was scored with criminal history points, and two

prior convictions for robbery in the second degree, neither of which received criminal

history points. From his criminal history and his poor performance on correctional

supervision, the district court concluded that there was a high likelihood that Murphy

would commit similar offenses when released from prison. 

II.

“We review a district court’s sentence in two steps: first, we review for

significant procedural error; and second, if there is no significant procedural error, we

review for substantive reasonableness.” United States v. Sadler, 864 F.3d 902, 904

2

The Honorable Gary A. Fenner, United States District Judge for the Western

District of Missouri.

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(8th Cir. 2017) (quoting United States v. O’Connor, 567 F.3d 395, 397 (8th Cir.

2009)). “We review the substantive reasonableness of a sentence under a deferential

abuse-of-discretion standard, considering the totality of the circumstances.” United

States v. Ballard, 872 F.3d 883, 885 (8th Cir. 2017). “A district court abuses its

discretion when it (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. Long, 870 F.3d 792, 799 (8th Cir. 2017)

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

To the extent that Murphy now alleges that the district court committed

procedural error, we review for plain error because Murphy failed to raise any such

objection below. See United States v. Cottrell, 853 F.3d 459, 462 (8th Cir. 2017). 

“Plain error is an error that is plain and that affects a defendant’s substantial rights.” 

Sadler, 864 F.3d at 904 (quoting O’Connor, 567 F.3d at 397). “Only if the plain error

‘seriously affects the fairness, integrity or public reputation of judicial proceedings’

will we correct the error.” Id. (quoting O’Connor, 567 F.3d at 397). 

Here, we find no error, plain or otherwise, in the district court’s imposition of

Murphy’s 160-month sentence, nor do we find that the sentence is substantively

unreasonable. Contrary to Murphy’s claim, the district court adequately explained 

the sentence imposed and its deviation from the Guidelines range. Further, the district

court considered all of the § 3553(a) sentencing factors and had “substantial latitude

to determine how much weight to give the various factors.” United States v. Williams,

791 F.3d 809, 811 (8th Cir. 2015) (quoting United States v. Timberlake, 679 F.3d

1008, 1012 (8th Cir. 2012)). The district court was permitted to conclude that the

Guidelines failed to adequately account for Murphy’s prior criminal history, both

scored and unscored, and his likelihood to reoffend. See United States v. Barrett, 552

F.3d 724, 726 (8th Cir. 2009) (“Section 3553(a) allows courts to vary upward based

on an underrepresented criminal history or recidivism.”). In light of the record, we

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cannot say the district court abused its discretion when sentencing Murphy.

III.

The judgment of the district court is affirmed. 

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