United States Court of Appeals

For the Eighth Circuit

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No. 22-2911

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Isaac Roubideaux

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court 

for the District of South Dakota - Western

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 Submitted: December 7, 2023

Filed: December 15, 2023 

[Unpublished]

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Before SHEPHERD, GRASZ, and KOBES, Circuit Judges. 

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PER CURIAM.

A jury convicted Roubideaux of discharge of a firearm during and in relation

to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii) (Count 1); assault

with a dangerous weapon, in violation of 18 U.S.C. §§ 113(a)(3) and 1153 (Count 2);

assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 113(a)(6) and

1153 (Count 3); commission of a crime of violence after failing to register as a sex
offender, in violation of 18 U.S.C. § 2250(a) and (d)(1) (Count 4); 2 counts of failure

to register as a sex offender, in violation of 18 U.S.C. § 2250(a) (Counts 5, 6);

possession of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2) (Count 7); and possession of a firearm by a drug user, in violation of 18

U.S.C. §§ 922(g)(3) and 924(a)(2) (Count 8).

In sentencing Roubideaux, the district court grouped the counts, excluding

Counts 1 and 4 from grouping because each had a mandatory consecutive

imprisonment term, and calculated a Guidelines imprisonment range for the

remaining counts of 60-71 months (increased from 57-71 months by the 60-month

statutory minimum sentence for Count 4). The court imposed sentences of 120

months for Count 1, 71 months for Count 2, 120 months for Count 3, 60 months for

Count 4, and 71 months for Count 7, stating that each would “run consecutively to

all other counts”; and sentences of 60 months for Count 5, 60 months for Count 6,

and 71 months for Count 8, stating that they would run concurrently to each other. 

The court stated that it had varied 49 months above the top of the Guidelines range

for Count 3, and calculated a total sentence of 442 months.

In a brief filed under Anders v. California, 386 U.S. 738 (1967), counsel

challenged the sufficiency of the evidence at trial and the reasonableness of

Roubideaux’s sentence. After independent review under Penson v. Ohio, 488 U.S.

75 (1988), we directed the parties to address additional sentencing issues. Both

parties have filed supplemental briefs requesting resentencing.

Initially, we conclude that the evidence presented at trial, which included

multiple eyewitnesses and DNA, was sufficient to support Roubideaux’s conviction. 

See United States v. Timlick, 481 F.3d 1080, 1082 (8th Cir. 2007) (sufficiency of

evidence to sustain conviction is reviewed de novo); United States v. Spears, 454

F.3d 830, 832 (8th Cir. 2006) (appellate court does not weigh evidence or assess

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credibility of witnesses and will reverse only if no reasonable jury could have found

defendant guilty beyond reasonable doubt).

As to the sentencing issues, we conclude that procedural errors existed in

calculating the sentence. See United States v. Feemster, 572 F.3d 455, 461 (8th Cir.

2009) (en banc) (appellate court reviews sentence under deferential

abuse-of-discretion standard, first ensuring that district court committed no

significant procedural error; procedural error includes failing to calculate, or

improperly calculating, Guidelines range); United States v. Moore, 565 F.3d 435, 437

(8th Cir. 2009) (unobjected-to procedural sentencing error is reviewed under plain

error standard). Thus, we conclude that resentencing is warranted. See

Molina-Martinez v. United States, 578 U.S. 189, 198-99 (2016) (Guidelinescalculation error resulting in incorrect Guidelines range will most often be sufficient

to show prejudice; the Guidelines are the framework for sentencing and anchor the

court’s discretion, even if the sentencing judge sees a reason to vary from them).

First, the presentence report (PSR) relied upon by the district court states that

the sentence for Count 4 was required to be imposed consecutively to every other

count. However, Count 4 was only required to be imposed consecutively to the

sentence for Count 5, and could have been imposed to run concurrently with any

other count except Count 1 (which was required to run consecutively to all other

counts). See 18 U.S.C. § 2250(d) (minimum sentence of 5 years must be imposed

consecutively to the punishment provided for the underlying failure to register

violation). Second, despite excluding Count 4 from grouping while calculating the

Guidelines range, the PSR used its 60-month mandatory minimum sentence to raise

the floor of the Guidelines range for the grouped counts. See U.S.S.G. § 5G1.2(a)

(when statute specifies a term of imprisonment and requires it to be imposed to run

consecutively to any other term of imprisonment, the sentence shall be determined by

that statute and imposed independently). 

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Further, while the district court referenced a variance of 49 months above the

Guidelines range for Count 3, we note that Roubideaux’s total sentence constitutes

a 191-month upward variance from the top of the Guidelines range (251 months,

consisting of 120 months for Count 1, 60 months for Count 4, and 71 months for the

top of the calculated Guidelines range). Cf. U.S.S.G. § 5G1.2 comment. (n.1.) (court

should determine the total punishment based on the Guidelines range produced by the

defendant’s combined adjusted offense level and criminal history category, then

impose the total punishment on each count with all sentences running concurrently;

if no count carries a statutory maximum sentence adequate to accommodate the total

punishment, the court should impose consecutive sentences to the extent necessary

to achieve the total punishment). On remand, the court should consider whether it

intends to impose a variance of this magnitude. Because Roubideaux will be

resentenced, we do not consider the reasonableness of the current sentence.

We also note that the judgment does not set out a total sentence, and that the

total sentence stated by the court appears to be based on a miscalculated total of the

individual sentences. We do not address this issue at this time, given the remand for

resentencing.

Accordingly, we affirm Roubideaux’s conviction, vacate his sentence, and

remand to the district court for resentencing.

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