United States Court of Appeals

For the Eighth Circuit 

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No. 22-1208

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United States of America

 Plaintiff - Appellee

v.

Brandy Fish

 Defendant - Appellant

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Appeal from United States District Court 

for the District of Nebraska - Omaha

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Submitted: September 19, 2022

Filed: October 3, 2022

[Unpublished]

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Before SHEPHERD, KELLY, and GRASZ, Circuit Judges. 

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PER CURIAM.

 After pleading guilty to one count of conspiracy to distribute 50 or more grams 

of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, the district 

court1 sentenced Brandy Fish to 46 months imprisonment followed by 3 years of 

1

The Honorable Brian C. Buescher, United States District Judge for the 

District of Nebraska.
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supervised release. Fish appeals her sentence, asserting that the district court abused 

its discretion by denying her request for probation. Having jurisdiction under 28 

U.S.C. § 1291, we affirm.

Fish’s conviction arises from three sales of methamphetamine to a 

confidential informant. At the first sale, Fish delivered 14 grams of a mixture 

containing methamphetamine. The informant then asked for larger quantities. After 

coordinating with her supplier, Fish obtained additional methamphetamine and sold

it to the informant over two separate meetings. All told, Fish provided 70.7 grams 

of methamphetamine to the informant. Based on these sales, Fish was charged with 

conspiracy to distribute 50 or more grams of methamphetamine in violation of 21 

U.S.C. §§ 841(a)(1) and 846. Fish appeared for arraignment, pled not guilty, and 

was held in pretrial detention. Three months later, Fish was released from custody 

and entered a drug treatment facility. Fish responded well to treatment. While on 

pretrial release, she transitioned to a substance-free boarding house and obtained a 

steady job. Fish subsequently pled guilty to the distribution charge. 

The Presentence Investigation Report (PSR) prepared by the United States 

Probation Office calculated a total offense level of 21 and a criminal history category 

of IV, resulting in a Guidelines range of 57 to 71 months imprisonment. Pursuant 

to 21 U.S.C. § 841(b)(1)(B), Fish faced a statutory minimum of 5 years

imprisonment and was ineligible for probation. The PSR noted that Fish met the 

statutory requirements for the safety valve reduction set forth in 18 U.S.C. § 3553(f), 

which allowed the district court “to impose a sentence below the statutory 

minimum.” United States v. Rios, 995 F.3d 654, 658 (8th Cir. 2021) (citation 

omitted). Thus, the PSR recommended a downward variance to 46 months 

imprisonment, at the low end of the safety valve–adjusted Guidelines range. At 

sentencing, the government endorsed the PSR recommendation. Fish requested 

probation based on her progress during pretrial release. While acknowledging Fish’s 

progress, the district court agreed with the government, denied Fish’s request for 

probation, and sentenced Fish to 46 months imprisonment.
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Fish appeals, arguing that the district court abused its discretion by denying 

her request for probation and imposing a substantively unreasonable sentence. The 

government argues that Fish was ineligible for probation and that, regardless, the 

district court did not abuse its discretion in imposing a within-Guidelines sentence. 

“When we review the imposition of sentences, whether inside or outside the 

Guidelines range, we apply ‘a deferential abuse-of-discretion standard.’” United 

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

“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.’” Id. (citation omitted). 

“We presume the reasonableness of a within-Guidelines sentence.” United States v. 

Joiner, 39 F.4th 1003, 1011 (8th Cir. 2022). “[B]ut ‘[t]his presumption . . . may be 

rebutted by reference to the statutory sentencing factors found in 18 U.S.C. 

§ 3553(a).’” United States v. Sharkey, 895 F.3d 1077, 1080 (8th Cir. 2018) (second 

and third alterations in original) (citation omitted). 

Fish first argues that the district court failed to consider probation as one of 

“the kinds of sentences available” for Fish’s offense as required by 18 U.S.C. 

§ 3553(a)(3). However, as noted by the PSR, the government, and the district court, 

Fish is statutorily ineligible for probation. See 21 U.S.C. § 841(b)(1)(B) 

(“Notwithstanding any other provision of law, the court shall not place on 

probation . . . any person sentenced under this subparagraph.”); 21 U.S.C. § 846

(“Any person who . . . conspires to commit any offense defined in this subchapter 

shall be subject to the same penalties as those prescribed for the offense, the 

commission of which was the object of the . . . conspiracy.”); 18 U.S.C. § 3561(a) 

(“A defendant who has been found guilty of an offense may be sentenced to a term 

of probation unless— (1) the offense is a Class A or Class B felony and the defendant 

is an individual; [or] (2) the offense is an offense for which probation has been 

expressly precluded . . . .”). Thus, the district court properly excluded probation as 

a “sentence[] available” under § 3553(a)(3). 
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Fish also argues that the district court erred in its § 3553(a) analysis by giving 

too much weight to incarceration as a necessary component of her sentence. The 

record offers Fish no support. In crafting the sentence, the district court properly 

referenced the § 3553(a) factors, including general and specific deterrence, 

protection of the public, the need to avoid sentencing disparities, and the criminal 

history of the defendant. While the court commended Fish for having “turned a 

corner,” it found that the “nature of the offense, the need for deterrence and the 

significance [of] the defendant’s criminal history” counseled against any further 

downward variance. Ultimately, “‘[t]he district court has wide latitude to weigh the 

§ 3553(a) factors in each case . . . ,’ and a defendant’s disagreement with the district 

court’s balancing of relevant considerations does not show that the court abused its 

discretion.” United States v. Campbell, 986 F.3d 782, 800 (8th Cir. 2021), cert. 

denied, 142 S. Ct. 751 (2022) (first alteration in original) (citations omitted). 

Moreover, the district court’s application of the safety valve provision resulted in a

sentence below the statutory minimum of 5 years imprisonment. See 21 U.S.C. 

§ 841(b)(1)(B). Fish offers no mitigating circumstances not already accounted for 

by the district court to justify a further downward variance. We therefore conclude 

that Fish has not rebutted the presumption of reasonableness that attaches to her

sentence, see Joiner, 39 F.4th at 1011, and that the district court did not abuse its 

discretion.

For the foregoing reasons, we affirm the judgment of the district court.

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