United States Court of Appeals

For the Eighth Circuit

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No. 16-1970

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Steven Petersen

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Northern District of Iowa - Cedar Rapids

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 Submitted: January 9, 2017

 Filed: February 22, 2017

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Before RILEY, Chief Judge, LOKEN and BENTON, Circuit Judges.

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RILEY, Chief Judge.

While serving his term of supervised release, Steven Petersen left a voice mail

soliciting his daughter to commit an assault on Petersen’s behalf. The district court

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revoked Petersen’s supervised release and committed Petersen to the Bureau of

The Honorable Linda R. Reade, United States District Judge for the Northern 1

District of Iowa. 
Prisons for 8 months followed by one year of supervised release. Petersen appeals,

arguing there was insufficient evidence to find he committed a new offense and his

new sentence is substantively unreasonable. We affirm. See 28 U.S.C. § 1291

(appellate jurisdiction).

 

I. BACKGROUND

Petersen pled guilty to being a felon in possession of a firearm in violation of

18 U.S.C. §§ 922(g)(1) and 924(a)(2) in 2008. The district court sentenced Petersen

to 78 months imprisonment followed by a three-year term of supervised release. 

Petersen began his term of supervised release in August 2013. Among other

conditions, Petersen was prohibited from unlawful drug use, “entering bars, taverns,

or other establishments whose primary source of income is derived from the sale of

alcohol,” and committing a subsequent federal, state, or local crime and wasrequired

to submit to periodic drug testing. 

Petersen initially had difficulties while on supervised release, including

refusing to work with female probation officers and making threatening statements.

In February 2014, Petersen failed a drug test and admitted to using marijuana. The

district court modified the conditions of Petersen’s supervised release and required

him to serve two consecutive weekends in jail in March 2014. For almost two years

following this modification, Petersen complied with all conditions of his supervised

release, including completing substance abuse and mental health treatment and

submitting to all drug tests.

In February 2016, while still on supervised release, Petersen attended a

memorial held at a bar, intending to meet friends. Petersen did not enter the bar itself,

but sat at a table located on the patio of the bar. At his sentencing hearing, Petersen

admitted to entering the same bar several months prior. The bar’s manager, Betty

Cole, requested that her friend, Kathy Speicher, tell Petersen to leave. Speicher

approached Petersen and told him Cole did not want Petersen at the bar. According

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to Speicher, Petersen was “pleasant” and “nice” to her, but as he turned to leave,

Petersen told Speicher to relay to Cole that “I’mcoming back and we’re going to have

words.” Speicher testified Petersen then said “No, you tell her that I’m coming back,

and I’m going to get in her face and we’re going to have words” and followed that

comment with “No, you tell her I’m coming back, and I’m bringing a gun.” Petersen

denied this version of events, yet did admit “[i]f [he] said anything like that, [he] said,

‘Tell Betty to get her gun.’” Speicher and Petersen agreed Petersen then left the

premises. 

Shortly after Petersen left, he called his daughter, Benita Petersen, who was

inside the bar for the memorial. Petersen left his daughter a voice mail in which he

said: “[Cole] just threw me out of . . . [the bar] and I want her . . . head and you’re the

woman enough to do it. . . . I did a job for you once now I wanna return the favor,

bust her . . . nose. I’ll pay ya a hundred dollars and I’ll pay all your fines. Go in there

and bust her ass up, alright . . . Please? Thank you bye.” (Last ellipsis in original).

Petersen testified he was just “venting” and did not intend actually to hire his

daughter to assault Cole; however, Petersen never contacted Benita to tell her he did

not want her to assault Cole. Benita later played the message for her fiancé, who then

informed Cole of Petersen’s comments. 

Cole reported the details of the incident to a deputy sheriff, but chose not to

write out a statement. Chargessubsequently were filed against Petersen in state court

for solicitation to commit an aggravated misdemeanor in violation of Iowa Code

§ 705.1(3). Petersen’s probation officer filed a petition to revoke Petersen’s

supervised release based on four violations: failure to comply with drug testing in

February 2014, use of a controlled substance in February 2014, a new violation based

on the February 2016 incident resulting in the state charge for solicitation, and

entering a bar in February 2016. 

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At a revocation hearing held April 19, 2016, the district court explicitly relied

on statements made by Speicher, the deputy sheriff, and Benita and found Petersen

not totally credible. The district court found Petersen committed the new crime of

solicitation to commit an aggravated misdemeanor, which it treated as a grade C

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violation under United States Sentencing Guidelines (U.S.S.G. or Guidelines)

§ 7B1.1(a)(3). Based on that violation and Petersen’s criminal history category II at

the time of his originalsentencing, the Guidelines range of imprisonment was 4 to 10

months. See id. § 7B1.4. The government requested a revocation sentence within the

Guidelines range, but Petersen asked for no more than 30 days in jail. The district

court considered the 18 U.S.C. § 3553(a) factors and noted Petersen had a history of

mental illness, substance abuse, and violent tendencies and was a high risk to

recidivate. The district court revoked Petersen’s supervised release and sentenced

him to 8 months imprisonment followed by a one-year term of supervised release.

Petersen filed this timely appeal, asserting (1) the evidence was insufficient to show

by a preponderance that he committed a new offense, and (2) 8 months imprisonment

was a substantively unreasonable sentence. 

II. DISCUSSION

A district court may “revoke supervised release if the government proves by

a preponderance of the evidence that the defendant violated a condition ofsupervised

release.” United States v. Boyd, 792 F.3d 916, 919 (8th Cir. 2015); see also

18 U.S.C. § 3583(e)(3). We review such a revocation decision for abuse of

discretion, and we review any findings of fact as to whether or not a violation

occurred for clear error. See Boyd, 792 F.3d at 919. We reverse a revocation

In imposing the sentence, the district court did not consider that Petersen 2

violated his terms of supervised release by entering a bar because “that might be

questioned by an appellate court,” but did find Petersen was on property that

constituted a bar. 

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decision only if we have “‘a definite and firm conviction that the District Court was

mistaken.’” Id. (quoting United States v. Willis, 433 F.3d 634, 636 (8th Cir. 2006)). 

The district court found by a preponderance of the evidence Petersen

committed the state crime of soliciting an aggravated misdemeanor. Iowa Code

§ 705.1 prohibits “command[ing], entreat[ing], or otherwise attempt[ing] to persuade

[another] person to commit a particular felony or aggravated misdemeanor, with the

intent thatsuch act be done and under circumstances which corroborate[] that intent.” 

Assault with intent to inflict serious injury upon another is an aggravated

misdemeanor. See id. § 708.2(1). At the revocation hearing, the government

introduced into evidence the voice mail Petersen left for Benita requesting she “bust

[Cole’s] . . . nose” in exchange for $100 and payment of any subsequent fines. 

Petersen’s own words are sufficient evidence he attempted to persuade Benita to

commit the particular aggravated misdemeanor of assault. 

Petersen contends there was no evidence he subjectively intended to solicit

Benita to commit an aggravated misdemeanor. “Because it is difficult to prove intent

by direct evidence, proof of intent usually consists of circumstantial evidence and the

inferences that can be drawn from that evidence.” State v. Grant, 722 N.W.2d 645,

647-48 (Iowa 2006). Both Petersen and Benita testified Petersen was just “venting.”

However, Petersen also testified he “maybe” would have followed through with the

solicitation if Benita had called him back to accept his offer because he was “being

treated so poorly,” and Benita testified she understood Petersen’s message to mean

Petersen would in fact pay her $100 and her fines if she assaulted Cole. In addition,

Petersen’s threatening comments made to Speicher and then Petersen’s own

testimony demonstrate he was “upset” with Cole. Petersen testified he never called

Benita after leaving the voice mail and never attempted to withdraw his offer of

payment for the assault. The district court did not clearly err in finding these facts,

and taken together, these facts show by a preponderance of the evidence Petersen

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solicited Benita to assault Cole and thus violated a condition of his supervised

release. 

Petersen also challenges his 8 months imprisonment as substantively

unreasonable. “We review the substantive reasonableness of a sentence for abuse of

discretion.” United States v. Harlan, 815 F.3d 1100, 1107 (8th Cir. 2016). A district

court abuses its discretion in sentencing “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) (quoting United States v. Watson, 480

F.3d 1175, 1177 (8th Cir. 2007)). We may apply a presumption of reasonableness to

a sentence within the Guidelines range. See Gall v. United States, 552 U.S. 38, 51

(2007). “‘[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.’” United States v. Feemster, 572 F.3d 455, 464 (8th Cir.

2009) (en banc) (quoting United States v. Gardellini, 545 F.3d 1089, 1090 (D.C. Cir.

2008)). 

As Petersen points out, he complied with all conditions of his supervised

release for the nearly two years immediately preceding the current incident, yet the

district court had previously modified his term of supervised release in March 2014

for failure to comply with drug testing. The district court highlighted Petersen’s

completion of a drug education program, but also mentioned Petersen’s disciplinary

problems while completing that program. In setting Petersen’s sentence, the district

court explicitly “considered the factors at 18 [U.S.C.] § 3553(a),” determined

“Petersen poses a risk to the public safety,” and found Petersen’s own testimony and

prior convictions, including carrying a weapon and assault causing bodily injury,

demonstrate “violent tendencies.” Petersen does not point to any “‘relevant factor

thatshould have received significant weight’” or give any other indication the district

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court committed a “‘clear error of judgment in weighing’” the relevant factors. 

Lozoya, 623 F.3d at 626 (quoting Watson, 480 F.3d at 1177). This is not the

“‘unusual case’” where a sentence issubstantively unreasonable. Feemster, 572 F.3d

at 464 (quoting Gardellini, 545 F.3d at 1090). 

III. CONCLUSION

Finding no error and no abuse of discretion, we affirm. 

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