United States Court of Appeals

For the Eighth Circuit

___________________________

No. 19-3460

___________________________

United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Kyle Edward McGhghy

lllllllllllllllllllllDefendant - Appellant

 ____________

Appeal from United States District Court 

for the Southern District of Iowa - Des Moines

 ____________

 Submitted: September 21, 2020

Filed: January 7, 2021 

[Unpublished]

____________

Before LOKEN, SHEPHERD, and ERICKSON, Circuit Judges. 

____________

PER CURIAM.

Kyle McGhghy pled guilty to possession of a firearm by a prohibited person

in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2) and was sentenced to 48 months’

imprisonment. McGhghy appeals, alleging the district court1

 procedurally erred at

1The Honorable Stephanie M. Rose, United States District Judge for the

Southern District of Iowa.
sentencing and, as a result, imposed a substantively unreasonable sentence. We find

no error, procedural or substantive.

On December 9, 2018, McGhghy and several friends, including Anthony

Taylor, gathered to watch a football game in a friend’s camper. McGhghy brought

a revolver and a semiautomatic firearm into the camper. At some point during the

gathering, the firearms were passed around to the group and Taylor decided to play

Russian roulette with the revolver, fatally shooting himself in the head. 

McGhghy fled the scene before law enforcement officials arrived. All of the

witnesses to the shooting eventually provided interviews to law enforcement except

McGhghy. Some of the witnesses indicated McGhghy left the camper with the

semiautomatic weapon, which has never been recovered. McGhghy objected to the

statement in the presentence investigation report (“PSIR”) that he left the camper with

the semiautomatic firearm. Although the government declined to present evidence

on this issue, the district court noted the evidence in the record in support of the

statement and overruled McGhghy’s objection. The court determined the applicable

Sentencing Guidelines range was 63–78 months, rejected McGhghy’s request for a

sentence of 12 months and 1 day, and imposed a sentence of 48 months.

On appeal, McGhghy asserts the district court erred when it relied on the

PSIR’s allegation that McGhghy left the camper with the semiautomatic firearm;

relied on certain factual determinations related to McGhghy’s criminal history and the

revocation of a deferred judgment related to a previous arrest; noted McGhghy’s

refusal to interview with law enforcement officers; considered McGhghy’s treatment

and rehabilitation needs; allowed Taylor’s mother and grandmother to make victim

impact statements; and considered certain letters in support of McGhghy as relevant

to his prospects for rehabilitation. 

-2-
We review criminal sentences first for significant procedural error and then for

substantive reasonableness. United States v. Zeaiter, 891 F.3d 1114, 1121 (8th Cir.

2018). Upon careful review of the record, we find McGhghy’s claims of error fail. 

The record does not support his claim that the district court considered whether he

fled the scene with the semiautomatic firearm when formulating its sentence. While

the court made numerous findings, none involved McGhghy leaving the camper with

the missing firearm. Likewise, McGhghy’s claim that his sentence was enhanced in

violation of the Fifth Amendment because he did not consent to a law enforcement

interview is not supported by the record. Although the district court noted that it did

not usually vary to the extent requested by McGhghy in the absence of substantial

assistance, there is no reason to view this statement as an indication that McGhghy’s

sentence was enhanced, especially since the court specifically noted that it was not

punishing McGhghy for failing to submit to an interview. McGhghy has not pointed

to any other consideration that the court failed to make and to which he was entitled.

As to McGhghy’s other claims, the district court’s findings related to his

criminal history and revocation of a deferred judgment are supported by the record. 

We find no abuse of discretion in examining McGhghy’s treatment and rehabilitation

needs, or in considering the letters in support of McGhghy, or in allowing Taylor’s

mother and grandmother to make statements at sentencing. 

The district court considered the relevant statutory factors and sufficiently

explained the reasons for the sentence it imposed. When a district court varies

downward from the applicable Sentencing Guidelines range, it is nearly

inconceivable to find the court abused its discretion because it did not vary downward

further. United States v. Deering, 762 F.3d 783, 787 (8th Cir. 2014). We affirm the

district court’s judgment.

______________________________

-3-