United States Court of Appeals

For the Eighth Circuit

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No. 20-2832

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Kirk Flying Horse

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court 

for the District of South Dakota - Northern

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 Submitted: June 18, 2021

Filed: July 20, 2021

[Published] 

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Before LOKEN, KELLY, and ERICKSON, Circuit Judges. 

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PER CURIAM.
In 2015, Kirk Flying Horse pleaded guilty to assaulting, resisting, and

impeding a federal officer. See 18 U.S.C. § 111(a), (b). The district court1 sentenced

him to 30 months’ imprisonment and a three-year term of supervised release. Flying

Horse completed his initial term of imprisonment but has struggled to comply with

the conditions of his supervised release because of his alcohol addiction.

Flying Horse began serving his first term of supervised release on November 1,

2017. The district court revoked his supervised release on June 24, 2019, after Flying

Horse admitted to consuming alcoholic beverages, possessing marijuana, and failing

to attend cognitive behavioral treatment. The court sentenced him to seven months’

imprisonment and a 29-month term of supervised release.

The new term of supervised release began on September 16, 2019. Nine

months into that term, Flying Horse’s probation officer petitioned the district court

to again revoke his supervised release because of a series of alleged violations. On

August 17, 2020, Flying Horse admitted to consuming alcohol and using marijuana

and methamphetamine, and the district court revoked his supervised release. The

advisory Guidelines range for the revocation sentence was 6 to 12 months’

imprisonment. See U.S. SENT’G COMM’N, Guidelines Manual, § 7B1.4 (2018). But

the district court imposed the statutory maximum of 24 months’ imprisonment, see

18 U.S.C. § 3583(e)(3), with no term of supervised release to follow. Flying Horse

appeals, asserting that this sentence was substantively unreasonable.

We review the substantive reasonableness of a district court’s revocation

sentence under the same abuse of discretion standard that applies to initial sentencing

proceedings. See United States v. Growden, 663 F.3d 982, 984 (8th Cir. 2011). A

district court abuses its discretion if it “fails to consider a relevant factor that should

1The Honorable Charles B. Kornmann, United States District Judge for the

District of South Dakota. 

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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. Staten, 990 F.3d 631, 636 (8th Cir. 2021)

(per curiam) (quoting United States v. Petersen, 848 F.3d 1153, 1157 (8th Cir. 2017)). 

The district court properly consulted the 18 U.S.C. § 3553(a) factors and

considered Flying Horse’s struggle with alcohol addiction in selecting the sentence

imposed. Although Flying Horse requested placement in a treatment facility instead

of prison, the district court determined that his repeated supervised release violations

warranted a custodial sentence. The court expressed particular concern about the

physical danger Flying Horse had posed to others, including law enforcement

officers, while intoxicated. And although the court acknowledged the obstacles to

obtaining addiction treatment during the pandemic, it was less sympathetic to Flying

Horse’s failure to successfully complete any treatment program in the preceding 20

years. While Flying Horse’s case presents mitigating circumstances, including his

documented decades-long struggle with alcohol, the district court did not abuse its

discretion in selecting the sentence imposed.

For these reasons, we affirm the district court’s judgment. 

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