United States Court of Appeals

For the Eighth Circuit

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No. 15-1331

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Donta Boelter

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the District of Nebraska - Lincoln

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 Submitted: November 16, 2015

Filed: November 30, 2015

[Published]

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Before RILEY, Chief Judge, BEAM and KELLY, Circuit Judges.

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PER CURIAM.

Donta Boelter appeals the 24-month sentence he received following the

revocation of his supervised release. Boelter contends the sentence is substantively

unreasonable because it is greater than necessary to achieve the purposes of 18 U.S.C.
§ 3553(a). Because we concludeBoelter’s sentence wassubstantively reasonable, we

affirm.

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On January 29, 2010, Boelter pled guilty to one count of retaliating against a

witness, in violation of 18 U.S.C. § 1513(b)(1). Boelter’s calculated Sentencing

Guidelines range was 30–37 months. At his sentencing hearing on September 7,

2011, the district court varied downward and sentenced Boelter to a term of time

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served, followed by a 3-year term of supervised release. Boelter began his

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supervised release on September 7, 2011. His term of supervised release was set to

expire on September 6, 2014.

On May 14, 2014, a petition to revoke Boelter’s supervised release was filed. 

The petition alleged Boelter had not worked since September 2013, had tested

presumptively positive for the use of marijuana on eight occasions between August

29, 2013, and March 26, 2014, wasfound at a residence where another individual was

cited for possession of marijuana and drug paraphernalia, and had failed to complete

his 100 hours of community service. During a December 2, 2014, revocation of

supervised release hearing, Boelter admitted to using marijuana on eight occasions

between August 29, 2013, and March 26, 2014. The court granted Boelter’s oral

motion to continue the disposition hearing until March 3, 2015. 

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We have jurisdiction pursuant to 28 U.S.C. § 1291. 1

The Honorable Richard G. Kopf, United States District Judge for the District 2

of Nebraska, presided over Boelter’s September 7, 2011, sentencing hearing and all

hearings regarding revocation of Boelter’s supervised release. 

Boelter was in custody for 47 days. 3

The record is unclear as to why Boelter requested a continuance. 4

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On December 7, 2014, Boelter was arrested in Kearney, Nebraska, and charged

with trespassing, disturbing the peace, and possessing marijuana. A second petition

to revoke supervised release wasfiled on December 10, 2014. The alleged violations

in this petition included his December 7, 2014, arrest, a November 19, 2014, citation

for possession of marijuana and child abuse/neglect, lying to his probation officer

about where he was residing, and failing to notify his probation officer prior to

moving to a new residence. 

The March 3, 2015, hearing was rescheduled for January 29, 2015. Because

the state charges remained pending, Boelter did not admit any of the violations

alleged in the second petition. At the court’s request, the government called Boelter’s

Probation Officer, Michelle McNamara, to testify about the December 7 incident in

Kearney. On cross-examination, McNamara also confirmed Boelter successfully

completed community service and substance abuse treatment, but testified Boelter

was unemployed for much of the previous two-year period. 

All of Boelter’s alleged violations were Grade C violations. With a criminal

history category I, Boelter’s Sentencing Guidelines range was 3–9 months. The

maximum prison term and maximum term of supervised release that could be

reimposed were each 60 months. The probation office recommended a sentence of

24 months imprisonment with no supervision to follow. Boelter requested a sentence

of one year and a day, with no supervision to follow. The district court initially stated

it was inclined to sentence Boelter to a prison term of 30 months, but ultimately

sentenced Boelter to a prison term of 24 months with no supervision to follow.5

Boelter timely appealed. 

The judgment notes that “[a]llegations 1, 3, and 4 of the [first] Petition [88] 5

and the 2nd Petition [100] are dismissed on the motion of the United States.” 

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We review the substantive reasonableness of a district court’s sentence on

revocation ofsupervised release under “the same reasonableness standard that applies

to initial sentencing proceedings.” United States v. Growden, 663 F.3d 982, 984 (8th

Cir. 2011) (quotation omitted). A 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) (quotation

omitted). “The district court has wide latitude to weigh the § 3553(a) factors in each

case and assign some factors greater weight than othersin determining an appropriate

sentence.” United States v. Bridges, 569 F.3d 374, 379 (8th Cir. 2009). 

Boelter concedes the district court considered the appropriate sentencing

factors but contends the court made a clear error in judgment in weighing them. 

Boelter argues the district court gave too much weight to the unproved allegations in

the second petition. Boelter assertsthe court should have placed greater emphasis on

the positive strides he had made in the prior two years, such as completing substance

abuse treatment and his community service hours. 

Although Boelter’s sentence was greater than the advisory Guidelines range

and the sentence he proposed, we conclude it was not substantively unreasonable. 

The district court gave appropriate consideration to the 18 U.S.C. § 3553(a) factors,

explaining the upward variance was based on “the seriousness of the offense” and

the need “to promote respect for the law, to provide for just punishment, and to afford

deterrence.” The court considered the applicable Guidelines and specifically noted

that Boelter had received a downward departure to a sentence of time served at his

originalsentencing. See USSG §7B1.4, comment (n.4) (“Where the originalsentence

was the result of a downward departure . . . that resulted in a sentence below the

guideline range applicable to the defendant’s underlying conduct, an upward

departure may be warranted.”). We conclude the district court acted well within its

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broad discretion in determining that a 24-month term of imprisonment with no

supervision to follow was appropriate. 

Accordingly, we affirm the judgment and sentence of the district court. 

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