United States Court of Appeals

For the Eighth Circuit

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No. 16-3283

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Samuel F. Irvin

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Western District of Missouri - St. Joseph

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 Submitted: June 5, 2017 

Filed: June 23, 2017

[Unpublished]

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Before LOKEN, MURPHY, and MELLOY, Circuit Judges.

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PER CURIAM.

Samuel Irvin pled guilty to one count of being a felon in possession of

ammunition in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). The district court

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The Honorable Roseann A. Ketchmark, United States District Judge for the

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Western District of Missouri.
sentenced him to 84 months imprisonment. Irvin appeals, arguing that the district

court imposed a substantively unreasonable sentence. We affirm.

During an argument with a neighbor in October 2013, Irvin brandished a knife

in a parking lot before returning to his apartment. From there, he pointed a shotgun

in a threatening manner toward the neighbor as he walked by his window. After

police were called, they obtained a search warrant for Irvin's apartment. Although the

officers did not recover a firearm during their search, they did find .22 caliber

ammunition. Irvin was charged with being a felon in possession of ammunition in

violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and he pled guilty.

After the district court calculated an initial advisory guideline range for Irvin

(57 to 71 months), it concluded that his criminal history was underrepresented and that

a departure was warranted based on his prior conviction for assaulting a correctional

officer. Although that conviction was too old to count toward Irvin's criminal history,

he would have had a "more appropriate" advisory guideline range of 70 to 87 monthsif

it had in fact received criminal history points. After considering the 18 U.S.C. § 3553(a)

factors, the court sentenced him to 84 months imprisonment.

We review the reasonableness of the sentence for abuse of discretion. United

States v. Linderman, 587 F.3d 896, 899 (8th Cir. 2009). A defendant's "sentence is

substantively unreasonable if the district court 'fails to 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. Lozoya, 623 F.3d 624, 626 (8th

Cir. 2010) (quoting United States v. Watson, 480 F.3d 1175, 1177 (8th Cir. 2007)).

Irvin argues that the district court abused its discretion by placing too much

weight on his prior conviction for assaulting a correctional officer. A court may

depart upward if a defendant's "criminal history category substantially under-represents

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the seriousness" of his criminal history or the likelihood that he would commit other

crimes. U.S.S.G. § 4A1.3(a)(1). In considering criminal history, the court may take

notice of prior sentencestoo remote in time to receive criminal history points but which

show "similar, or serious dissimilar, criminal conduct." United States v. Johnson, 648

F.3d 940, 943 (8thCir. 2011) (quoting U.S.S.G. § 4A1.2(e) cmt. n.8). Irvin's conviction

for unlawfully possessing ammunition arose from an incident in which he assaulted a

neighbor by brandishing a knife and pointing a firearm in a threatening manner. His

prior conviction for assaulting a correctional officer evidenced similar and serious

assaultive conduct, so the district court acted within its discretion by considering and

giving appropriate weight to it in determining that Irvin's criminal history category

underrepresented his criminal history.

Irvin also argues that the district court failed adequately to weigh his mitigating

evidence, particularly the testimony of his former employer regarding his head injury

and work ethic. The record demonstrates, however, that the district court did consider

this mitigating evidence. The court described the former employer's testimony as

"impressive." In light of that testimony, it decided to give Irvin a shorter sentence

than initially anticipated. The district court acted well within its discretion in

declining to give Irvin's mitigating evidence more weight than it did, particularly

given its concerns about his assaultive criminal history. See United States v. SalazarAleman,741 F.3d 878, 881–82 (8th Cir. 2013) (concluding that sentence was not

substantively unreasonable when district court had acknowledged mitigating

evidence). We conclude that the district court's sentence was not substantively

unreasonable.

Accordingly, we affirm the judgment of the district court.

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