United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 11-2365

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* Northern District of Iowa.

Asa Winters, *

* [UNPUBLISHED]

Appellant. *

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Submitted: February 13, 2012

Filed: July 12, 2012

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Before WOLLMAN, ARNOLD, and SMITH, Circuit Judges.

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PER CURIAM.

Asa Winters pleaded guilty to one count of being an unlawful drug user in

possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2). The

district court sentenced Winters to 120 months' imprisonment to run consecutively 1

to his state bank robbery sentence and imposed three years' supervised release upon

completion of his sentence. Winters appeals his sentence as unreasonable. We affirm.

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

1

the Northern District of Iowa.
I. Background

On December 31, 2009, police were dispatched to City Liquor and Tobacco in

Waterloo, Iowa, after they received a report that a person inside the store may have

been involved in a December 23, 2009 robbery of the store. When they arrived,

officers found a vehicle parked in front of the store with the passenger-side doors

facing the store. According to the presentence investigation report (PSR), Baron

Booker was "sitting on the driver's side rear passenger seat of the vehicle," and

Najuan Decatur and Winters were walking toward the vehicle. When an officer

approached Winters, he "began to walk away and complained that the officer was

harassing him." During a pat-down search of Winters, "[t]he officer located a loaded

Hi-Point Model C9 9mm handgun with an obliterated serial number and a user

quantity of marijuana." Police found "a Hi-Point .380 caliber handgun with an

obliterated serial number on the floorboard near the front passenger seat of the

vehicle," as well as "black pants, two knit stocking hats, a black partial face mask,

and blue latex gloves in the rear cargo area of the vehicle."

During an interview with police, Winters "admitted to officers that the

marijuana found on his person was his and that he was a marijuana smoker." Winters

told police that he found the 9mm handgun in the glove box of the vehicle while he,

Decatur, and Booker were on their way to the store to buy liquor and that Booker said

that the gun was to "shoot up in the air because it was New Year's Eve." (Quotations

omitted.) Winters admitted that he had carried the gun into the liquor store.

A grand jury indicted Winters on one count of being an unlawful drug user in

possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2). Winters

pleaded guilty before a magistrate judge, and the district court accepted his guilty

plea. Prior to sentencing, the United States Probation Office prepared a PSR, which

calculated Winters's base offense level at 14, added a four-level enhancement because

the firearm had an altered or obliterated serial number, and reduced the offense by

three levels for acceptance of responsibility, resulting in a total offense level of 15. 

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The PSR also assigned Winters three criminal history points for a first-degree

robbery conviction in state court for robbing City Liquor and Tobacco on December

23, 2009, with Decatur and Booker, resulting in a criminal history category of II.

State trial records alleged that during the robbery, Winters "pointed [a] handgun at

a store clerk and told the clerk to open the cash register. [Winters] and Booker took

the money and all three ran out of the store. They later split the money." The PSR also

noted that three charges were still pending against Winters, one of which was for

robbing the East Fourth Street Liquor Store in Waterloo, Iowa, on December 29,

2009. According to the PSR, during that robbery, "Booker (while brandishing a

handgun and wearing a partial face mask and blue latex gloves) . . . entered the liquor

store," "confronted a store clerk near the cash register," and "shot the clerk." Winters

"while brandishing a long gun and wearing dark clothing," also "entered the liquor

store" and "pointed the shotgun at another clerk, cocked the shotgun, and told the

clerk to remain lying face down on the floor during the robbery." The PSR reported

that "Booker and Decatur later admitted to their involvement and to [Winters's]

involvement in the robbery." According to the PSR, the advisoryGuidelines range for

Winters's sentence was 21 to 27 months' imprisonment.

The government made a number of objections to the PSR. First, the

government argued that an offense level of 25 instead of 15 was appropriate pursuant

to U.S.S.G. § 2K2.1(c)(1)(A). The government indicated that police interdicted the

robbery conspiracy between Winters, Booker, and Decatur just before the second

attempt to rob City Liquor and Tobacco on December 31, 2009, and that Winters's

handgun could have helped them commit that robbery. In the alternative, the

government argued that a four-level increase to the offense level would be

appropriate under U.S.S.G. § 2K2.1(b)(6) because Winters used or possessed a

firearm during the December 29, 2009 robbery. Second, the government contended

that the district court should not reduce Winters's offense level for acceptance of

responsibility because he denied involvement in the December 23, 2009 robbery and

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the alleged attempted robbery on December 31, 2009. Finally, the government sought

an upward departure or variance from the Guidelines range "based upon un-scored

criminal history, factors not taken into account by the [G]uidelines, and the need to

impose a sentence that takes into consideration the factors set out in 18 U.S.C.

§ 3553."

At sentencing, the government again raised its objections to the PSR and stated

that, "depending upon the Court's ruling on those adjustments, we likely have a

motion for upward departure or variance as well based upon unscored criminal

history and the [§] 3553(a) factors." The government also argued that Wintersshould

serve his federal sentence consecutive to the state sentence he was serving for

robbery. Winters's counsel responded that "the probation office did a good job of

scoring this and that the evidence isjust not clear, nor can it be found with reasonable

certainty that all these crimes were connected and that Mr. Winters should be held

accountable for all the relevant conduct." Winters's counsel also asked that the

sentence imposed by the district court run concurrent to the state-court sentence for

robbery.

After a brief recess, the district court determined by a preponderance of the

evidence that Winters was involved in the December 23 and December 29, 2009

robberies. The district court also found "those robberies [to be] relevant conduct to

the charged offense to which [Winters] pled guilty." The court determined that

Winters's offense level was 25 because Winters was "assisting in casing the [store]"

on December 31, 2009. The court "d[id] not score acceptance of responsibility

because . . . [Winters] ha[d] not accepted fully his responsibility for relevant

conduct." The court adjusted Winters's criminal history, affording him "no points

. . . for the robbery because it's relevant conduct to the charged offense." This resulted

in a criminal history category of I and an advisory Guidelines range of 57 to 71

months' imprisonment. Although the district court found that U.S.S.G. § 5G1.3

"require[d] the Court to run the sentence concurrent to the undischarged term of

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imprisonment," the court decided to "vary upward" "to reflect the seriousness of the

offense, promote respectfor the law, provide just punishment, [and] protect the public

from further crimes of the defendant." The district court sentenced Winters to 120

months'imprisonment, the statutorymaximum, "to run consecutively to the remainder

of the undischarged term of imprisonment imposed" in state court, followed by three

years' supervised release. 

II. Discussion

On appeal, Winters argues that the district court abused its discretion by

imposing a sentence of 120 months' imprisonment to run consecutively to his state

sentence. To determine whether the district court abused its discretion, "'[w]e must

first ensure that the district court committed no significant procedural error,'" such as

"'failing to calculate (or improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a

sentence based on clearly erroneous facts, or failing to adequately explain the chosen

sentence—including an explanation for any deviation from the Guidelines range.'"

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

v. United States, 552 U.S. 38, 51 (2007)). If we determine that the district court

committed no procedural error, then we consider the substantive reasonableness of

the sentence imposed, "'tak[ing] into account the totality of the circumstances,

including the extent of any variance from the Guidelines range.'" Id. (quoting Gall,

552 U.S. at 51). 

A. Sentencing Procedure

Winters alleges that the district court committed procedural error by (1)

imposing a term of imprisonment to run consecutively to his state court sentence and

(2) failing to adequately explain its bases for a substantial upward variance.

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1. Consecutive Sentences

First, Winters argues that the district court abused its discretion by imposing

a sentence to run consecutively to his state sentence for robbery because the

Guidelines instruct the district court to impose the sentence to run concurrently to his

state sentence. Winters cites to U.S.S.G. § 5G1.3(b), which states:

[if] a termofimprisonment resulted fromanother offense that isrelevant

conduct to the instant offense of conviction . . . and that was the basis

for an increase in the offense level for the instant offense . . . , the

sentence for the instant offense shall be imposed as follows:

(1) the court shall adjust the sentence for any period of

imprisonment already served on the undischarged term of

imprisonment . . . ; and

(2) the sentence for the instant offense shall be imposed to run

concurrently to the remainder of the undischarged term of

imprisonment.

Winter pointed out that "'§ 5G1.3 operates to mitigate the possibility that the fortuity

of two separate prosecutions will grossly increase a defendant's sentence.'" United

States v. Heard, 359 F.3d 544, 550 (D.C. Cir. 2004) (quoting Witte v. United States,

515 U.S. 389, 405 (1995)).

As the government notes in its brief, however, "the sentencing guidelines are

no longer a mandatory regime." United States v. Shafer, 438 F.3d 1225, 1227 (8th

Cir. 2006). Here,the district court correctly calculated Winters's Guidelines range and

noted that § 5G1.3(b) applied. But the district court explained that, after reviewing

the § 3553(a) factors, it had decided to disregard § 5G1.3 and vary upward. In

imposing its sentence, "[t]he court thus did not fail to consider § 5G1.3(b)[] in its

guidelines calculations or in fashioning its ultimate sentence; it simply determined

that, in light of all of the § 3553(a) factors, a variance from the guidelines was

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appropriate." United States v. Carter, 652 F.3d 894, 897 (8th Cir. 2011). Because the

district court properly considered the Guidelines, it did not abuse its discretion in

imposing consecutive sentences. United States v. Fight, 625 F.3d 523, 525 (8th Cir.

2010) ("Even if the guidelines do not recommend that sentences run consecutively,

the district court has broad statutory authority, pursuant to 18 U.S.C. § 3584, to

impose consecutive terms.").

2. Explanation of Upward Variance

Second, Winters alleges that the district court abused its discretion by failing

to explain its bases for the upward variance. "The appropriateness of a district court's

sentencing explanations 'depends upon circumstances.'" United States v. Thunder,

553 F.3d 605, 608 (8th Cir. 2009) (quoting Rita v. United States, 551 U.S. 338, 356

(2007)). The district court is not required "to mechanically list every § 3553(a)

consideration when sentencing a defendant." Id. (quotation and citation omitted).

"Instead, evidence that the district court was aware of the relevant § 3553(a) factors

required to be considered is sufficient, and this evidence can be inferred from the

record." Id. (quotations, alteration, and citation omitted).

Here, the district court received eight police reports attached to the

government's sentencing memorandum, all of which pertained to the December 23

and December 29, 2009 robberies and the alleged attempted robbery on December 31,

2009. Several of the reports described interviews with Booker and Decatur, who told

police that Winters was involved in the robberies on December 23 and December 29,

2009, and brandished a gun in both robberies. One report described a photographic

lineup given to the owner of City Liquor and Tobacco, who identified Winters as one

of the men who had robbed his store on December 23, 2009. In other reports, police

describedWinters's suspicious behavior atCity Liquor and Tobacco on December 31,

2009, prior to his arrest. 

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Based on this evidence, the district court determined that Winters had been

involved in two prior robberies, one of which involved the shooting of a store clerk.

The court also found by a preponderance of the evidence that Winters and his coconspirators were "casing the place" for another robbery on the date of their arrest.

In light of this evidence, and "after carefully reviewing all of the statutory factors at

18 [U.S.C. §] 3553(a)," the district court determined that an upward variance was

warranted. The court explained:

[T]he basis of the upward departure is the need for the sentence to

reflect the seriousness of the offense, promote respect for the law,

provide just punishment, [and] protect the public from further crimes of

the defendant. The sentence I impose will totally disregard [§] 5G1.3

and the guideline calculation, and I will be giving him the maximum

statutory penalty of 120 months.

In light of the circumstances of this case, this explanation was adequate and does not

constitute an abuse of discretion. See United States v. Richart, 662 F.3d 1037, 1051

(8th Cir. 2011) (finding the district court's decision to vary upward to the statutory

maximum and run the two sentences consecutive to each other was not an abuse of

discretion when "[t]he district court correctly calculated the advisory guideline range,

properly considered the § 3553(a) factors, selected a . . . sentence based on factual

findings that were not clearly erroneous, and adequately explained the chosen

sentence").

B. Substantive Reasonableness

Although not expressly, Winters argues that a ten-year sentence for possession

of a firearm to run consecutive to his state sentence is substantively unreasonable.

"[I]t will be the unusual case when we reverse a district court sentence—whether

within, above, or below the applicable Guidelines range—as substantively

unreasonable." Feemster, 572 F.3d at 464. 

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In this case, the court was presented with evidence that Winters, Booker, and

Decatur had gone on a robbery spree: within eight days, they had committed two

armed robberies at two separate liquor stores, had returned to the first liquor store,

and were "casing the place" for a third robbery at the time they were arrested. During

one of the robberies, a store clerk wasshot. In light of this very dangerous conspiracy

in which Winters was a co-conspirator, and for which he refused to accept

responsibility, the district court found it necessary to apply the statutory maximum

sentence for Winters's illegal-weapon possession offense. Doing so was not an abuse

of discretion. See United States v. Neuzil, 405 F. App'x 80, 81 (8th Cir. 2010)

(unpublished per curiam) (finding that a district court did not abuse its discretion by

sentencing the defendant to the statutory maximum of 120 months' imprisonment for

possession of unregistered firearms when the defendant "repeatedly threatened his

wife and her family," exhibited a "fascination with firearms," "ha[d] a tendency to use

alcohol to excess," and "failed to show genuine remorse for his unlawful actions").

III. Conclusion

Accordingly, we affirm the judgment of the district court.

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