United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 08-2033

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* Southern District of Iowa.

Robert Andre Clay *

 * [UNPUBLISHED]

Appellant. * 

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Submitted: September 24, 2008

Filed: October 7, 2008

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Before MURPHY, ARNOLD, and BENTON, Circuit Judges.

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PER CURIAM.

Robert Andre Clay, Sr., pled guilty to one count of Felon in Possession of a

Firearm, 18 U.S.C. §§ 922(g)(1), 924(a)(2), and one count of Possession of a Sawedoff Shotgun, 26 U.S.C. §§ 5841, 5845(a), 5861(d), 5871. Clay appeals the sentence

of 240 months imprisonment, claiming abuse of discretion. Having jurisdiction under

28 U.S.C. § 1291 and 18 U.S.C. § 3742, this court affirms. 

The Guidelines sentencing range – initially 262 to 327 months – was preempted

by the combined statutory maximum of 240 months in accordance with U.S.S.G. §
1

The Honorable John A. Jarvey, United States District Judge for the Southern

District of Iowa.

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5G1.2(d). The district court1

 sentenced Clay to consecutive 120-month sentences, for

a total sentence of 240 months. The court considered all the factors in 18 U.S.C. §

3553(a) and looked to the Guidelines range as “an important though not singularly

controlling factor in determining a sentence that is sufficient, but not greater than

necessary.” The court concluded that the “Guideline sentencing system adequately

addresses the circumstances of this defendant and that the sentencing range is

reasonable.” 

This court reviews a district court’s sentencing decisions for abuse of discretion.

Gall v. United States, 128 S. Ct. 586, 597 (2007). A sentence within the Guidelines

range is presumptively reasonable on appeal. United States v. Garcia, 512 F.3d 1004,

1006 (8th Cir. 2008) (citing Rita v. United States, 127 S.Ct. 2456, 2462 (2007)). 

Clay contends that the district court failed to evaluate the sentencing factors

independently of the Guidelines and therefore, the court’s sentence is not entitled to

the presumption of reasonableness allowed under Rita. On the contrary, the court

properly considered the 18 U.S.C. § 3553(a) factors and adequately stated the reasons

for its sentence:

I have considered the nature and circumstances of this offense and the

history and characteristics of the defendant. I have considered the

seriousness of this offense . . . . These were truly chilling events and

endangered two adults and one young child as I recall. The Court has

considered the question of just punishment and the Court has to factor in

here the pattern of horrible violence against Rhonda Clay committed by

this defendant. The Court has considered the need for adequate

deterrence for criminal conduct and does note the criminal history of Mr.

Clay as recorded in the Presentence Report. The Court has considered
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strongly in this case the need to protect the public from further crimes

from this defendant. 

Clay also asserts that the district court erred in imposing consecutive, rather

than concurrent, sentences. Under U.S.S.G. § 5G1.2(d), which addresses sentencing

on multiple counts of conviction, “a district court may run sentences from multiple

counts consecutively, rather than concurrently, if the Guideline sentence exceeds the

statutory maximum sentence for each count . . . .” United States v. Saddler, 538 F.3d

879, 892 (8th Cir. 2008) (internal quotation marks and citation omitted). The district

court considered the need to protect the public from Clay, and its imposition of

consecutive sentences is not an abuse of discretion. 

A district court commits procedural error if it selects a sentence based on clearly

erroneous facts. Gall, 128 S. Ct. at 597. First, Clay contends that the record does not

reasonably support a conclusion that he committed a “pattern of horrible violence”

against his wife. Because ample evidence supports this conclusion, the court did not

clearly err. Next, Clay objects that his criminal history category “grossly exaggerates

the seriousness” of his crimes. To the contrary, Clay has been convicted several times

of domestic battery in addition to being convicted of assault, attempting to obstruct

justice, violation of an order of protection, and several other offenses. The district

court was not clearly erroneous in its consideration of Clay’s criminal history. 

The judgment of the district court is affirmed.

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