United States Court of Appeals

For the Eighth Circuit

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No. 16-1071

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Timothy M. Kirlin

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Western District of Missouri - Kansas City

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 Submitted: January 9, 2017

 Filed: June 12, 2017

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Before SMITH, Chief Judge, GRUENDER and SHEPHERD, Circuit Judges.

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SHEPHERD, Circuit Judge.

A Western District of Missouri grand jury returned an indictment charging

Timothy Kirlin with conspiracy to distribute 1,000 or more grams of heroin and some

amount of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A); being a felon

in possession of an explosive device, in violation of 18 U.S.C. §§ 842(i)(1),

844(a)(1); and possession with intent to distribute and distribution of heroin, in

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(c).
At a jury trial the United States introduced evidence that Kirlin and his coconspirators conducted a heroin distribution operation in the Kansas City, Missouri

area spanning a period of ten years. During this time Kirlin and others would

regularly travel to Texasto obtain significant quantities of heroin and other drugs for

distribution. In March of 2002, one of Kirlin’s customers, Joshua Webb, overdosed

and died after taking heroin supplied by Kirlin. Kirlin was present in Webb’s

apartment at the time of Webb’s death and, while others attempted to revive Webb,

Kirlin concealed drugs and marijuana plants. The medical examiner testified that

Webb would have lived had he not ingested heroin. 

Kirlin appeared at the jury trial pro se with the Federal Public Defender as

standby counsel. Kirlin made no opening statement or closing argument and did not

cross-examine the government’s witnesses. Kirlin presented no witnesses or other

evidence in his defense, and he made no motion to acquit at the close of the

government’s case. The jury returned a verdict of guilty as to each count of the

indictment and, in a special verdict form, found that Joshua Webb would not have

died but for his ingestion of heroin distributed by Kirlin.

At sentencing, the government represented that Kirlin had been previously

convicted of two drug-related felonies and therefore was subject to a mandatory life

sentence on the conspiracy count pursuant to 21 U.S.C. § 841(b)(1)(A). The

presentence report attributed between four and five kilograms of heroin to the

conspiracy and it did not recommend a reduction in the Guidelines offense level for

acceptance of responsibility. Kirlin’s Guidelines sentencing range was determined

to be 292 to 365 months and Kirlin was sentenced to life imprisonment on the

conspiracy count, 120 months imprisonment on the felon in possession of an

explosive device count, and 360 months imprisonment on each of the seven counts

of possession with intent to distribute and distribution of heroin. The sentences were

ordered to run concurrently with each other.

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Kirlin appealed and, after the filing of Kirlin’s opening brief, we granted the

government’s unopposed motion to remand this case to the district court for

resentencing because, according to the government, Kirlin’s two prior drug-related

felony convictions should have been counted as one conviction under 21 U.S.C.

§ 841(b)(1)(A). On remand, at the beginning ofthe second sentencing hearing, Kirlin

made a lengthy statement challenging the jurisdiction of the district court, the

authority of the United States Attorney, and the government’s case against him. The

district court

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found that as a result of amendments to the Sentencing Guidelines,

effective on November 1, 2014, which altered the drug quantity table under USSG

§ 2D1.1, the base offense level was reduced by two levels and the Sentencing

Guidelinesrange wasreduced to 235 to 293 months. The district court varied upward

and sentenced Kirlin to 360 months on the conspiracy count, 120 months on the

explosive device count, and 360 months on each of the remaining counts, with the

sentences to run concurrently. Kirlin again appeals.

Kirlin asserts the district court committed procedural error in failing to further

reduce the base offense level by two levels for acceptance of responsibility under

USSG § 3E1.1, failing to properly consider the sentencing factors set forth in 18

U.S.C. § 3553(a), and failing to adequately explain the sentence. He further contends

the sentence is substantively unreasonable. 

“In reviewing a challenge to a sentence, we must first ensure that the district

court committed no significant procedural error. . . . If we discover no procedural

error, we then consider the substantive reasonableness of the sentence imposed under

a deferential abuse-of-discretion standard.” United States v. Timberlake, 679 F.3d

1008, 1011 (8th Cir. 2012) (citation omitted) (internal quotation marks omitted). “In

reviewing a sentence for significant procedural error, we review a district court’s

factual findings for clear error and its interpretation and application of the guidelines

1The Honorable Gary A. Fenner, United States District Judge for the Western

District of Missouri.

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de novo.” United States v. Bryant, 606 F.3d 912, 918 (8th Cir. 2010). However, “[i]f

a defendant fails to timely object to a procedural sentencing error, the error is

forfeited and may only be reviewed for plain error.” United States v. Phelps, 536

F.3d 862, 865 (8th Cir. 2008).

The district court accepted the presentence report’s recommendation to deny

an acceptance of responsibility reduction in the offense level. Kirlin did not request

an acceptance of responsibility adjustment nor did he object to the district court’s

failure to apply an acceptance of responsibility reduction. Therefore, under plain

error review, Kirlin “must show (1) the district court committed an error, (2) the error

is clear or obvious, and (3) the error affected his substantial rights.” United States v.

White Bull, 646 F.3d 1082, 1091 (8th Cir. 2011). Even if these elements are shown,

we “will only reverse if the error ‘seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings.’” United States v. Jean-Guerrier, 666 F.3d 1087,

1091 (8th Cir. 2012) (alteration in original) (quoting Puckett v. United States, 556

U.S. 129, 135 (2009)).

Kirlin contends that under USSG § 3E1.1 the district court was required to

reduce his offense level for acceptance of responsibility because “he did nothing to

challenge the government’s case against him” at trial. Further, Kirlin asserts that he

declined to plead guilty and went to trial only because his attorney misled him as to

the sentence he would face if he pled guilty and “because the government’s only plea

offer was contingent on the guilty plea of a co-defendant” who declined to plead

guilty. 

USSG § 3E1.1(a) provides: “If the defendant clearly demonstrates acceptance

of responsibility for his offense, decrease the offense level by 2 levels.” Among the

factors whichmay be considered in determining whether a defendant qualifiesfor this

reduction are the defendant’s “truthfully admitting the conduct comprising the

offense(s) of conviction[;]” “voluntary termination or withdrawal from criminal

conduct or associations;” “voluntary payment of restitution prior to adjudication of

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guilt;” “voluntary surrender to authorities promptly after commission of the offense;”

“voluntary assistance to authorities in the recovery of the fruits and instrumentalities

of the offense;” “voluntary resignation from the office or position held during the

commission of the offense;” “post-offense rehabilitative efforts (e.g., counseling or

drug treatment);” and “the timeliness of the defendant’s conduct in manifesting the

acceptance of responsibility.” USSG § 3E1.1, comment. (n.1).

“[T]he district court is in a unique position to evaluate acceptance of

responsibility, [and] we will not disturb a district court’s decision to deny or grant the

reduction unlessthat decision is clearly erroneous.” United States v. Walter, 62 F.3d

1082, 1083 (8th Cir. 1995) (per curiam); see also USSG § 3E1.1, comment. (n.5).

The defendant bears the burden of establishing acceptance of responsibility, United

States v. Gonzalez, 781 F.3d 422, 431 (8th Cir. 2015), and the district court’s denial

of an acceptance of responsibility adjustment will be reversed only if the decision “is

so clearly erroneous as to be without foundation[,]” United States v. Adejumo, 772

F.3d 513, 536 (8th Cir. 2014) (internal quotation marks omitted). The acceptance of

responsibility adjustment “is not intended to apply to a defendant who puts the

government to its burden of proof at trial by denying the essential factual elements

of guilt, is convicted, and only then admits guilt and expresses remorse.” USSG

§ 3E1.1, comment. (n.2).

We find that Kirlin has not shown that the district court erred, much less

plainly erred, in declining to reduce his offense level for acceptance of responsibility.

Kirlin did not take any of the actions identified in the commentary to USSG § 3E1.1

as relevant to the district court’s decision with respect to the acceptance of

responsibility adjustment. Further, he “put[] the government to its burden of proof

at trial.” Id. While “[c]onviction by trial . . . does not automatically preclude a

defendant from consideration for such a reduction,” this is not one of those “rare

situations [where] a defendant may clearly demonstrate an acceptance of

responsibility for his criminal conduct even though he exercises his constitutional

right to a trial.” Id. Such a rare situation may arise “where a defendant goes to trial

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to assert and preserve issues that do not relate to factual guilt (e.g., to make a

constitutional challenge to a statute or a challenge to the applicability of a statute to

his conduct).” Id. 

Citing United States v. McKinney, 15 F.3d 849 (9th Cir. 1994), Kirlin implies

that in these circumstances his exercise of the right to trial should not exclude him

from consideration for the acceptance of responsibility reduction. He assertsthat but

for being “misled by his attorney as to the sentence he was facing if he pled guilty”

and the government’s conditioning any plea offer on the guilty plea of his codefendant, he would have waived jury trial and entered a guilty plea. He also points

out that he presented no defense at trial. 

McKinney is not on point. In McKinney, the defendant confessed after his

arrest, assisted police, attempted to plead guilty before trial but was rebuffed by the

district court, expressed remorse at trial, and was contrite at his sentencing hearing.

Id. at 852-53. Kirlin, however, has never accepted responsibility for his criminal

conduct and did not attempt to plead guilty. Rather, during and after trial Kirlin

asserted that his prosecution was a fraud practiced upon him and that the truth was

being concealed, and in his statement to the district court at sentencing he contended

that he is the victim of “malicious prosecution” and that “frivolous evidence” was

presented to the jury. In sum, Kirlin’s actions and statements before the district court

are not consistent with the Guidelines requirement that he “clearly demonstrate an

acceptance of responsibility for his criminal conduct.” USSG § 3E1.1, comment.

(n.2). We therefore find no plain error in the district court’s denial of the acceptance

of responsibility offense level reduction.

Kirlin also contends that the district court committed procedural error by

failing to consider the 18 U.S.C. § 3553(a) factors and failing to adequately explain

its reasons for varying upward to 360 months from the Guidelines sentencing range

of 235 to 293 months. “Procedural errors include . . . ‘failing to consider the

§ 3553(a) factors . . . or failing to adequately explain the chosen sentence-including

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an explanation for any deviation from the Guidelines range.’” United States v.

Williams, 624 F.3d 889, 896 (8th Cir. 2010) (quoting Gall v. United States, 552 U.S.

38, 51 (2007)). Again, Kirlin failed to object to these alleged procedural errors and,

accordingly, we review his contentions for plain error. United States v. Gray, 533

F.3d 942, 945 (8th Cir. 2008) (Where the defendant fails to “object at sentencing to

the adequacy of the district court’s explanation or consideration of § 3553(a), . . . we

review his objection on appeal for plain error.”). 

A review of the record of the sentencing hearing reveals that the district court

expressly considered several ofthe § 3553(a) factors and their applicability to Kirlin’s

case and explained that, “taking all of the statutory factors into consideration,” a

sentence within the Guideline range was “not sufficient to meet the statutory

considerations” that the court considered. We have repeatedly held that the

sentencing judge need not mention each § 3553(a) factor in explaining the sentence

where, as here, “we are satisfied, in context, that the district judge . . . was aware of

the § 3553(a) factors and adequately considered them in selecting an appropriate

sentence.” Id. at 946;see also United States v. Krzyzaniak, 702 F.3d 1082, 1085 (8th

Cir. 2013) (“The court’s explanation is sufficient if the sentencing record taken as a

whole demonstrates that the court considered the relevant factors.”). We conclude

that the district court committed no procedural error.

Finally, Kirlin contends his sentence of 360 months is substantively

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

discretion. United States v. Long Soldier, 431 F.3d 1120, 1123 (8th Cir. 2005). “‘A

district court abuses its discretion when it (1) fails to consider a relevant factor that

should have received significant weight; (2) gives significant weight to an improper

orirrelevant factor; or(3) considers only the appropriate factors but in weighing those

factors commits a clear error of judgment.’” United States v. Borromeo, 657 F.3d

754, 756 (8th Cir. 2011) (quoting United States v. Feemster, 572 F.3d 455, 461 (8th

Cir. 2009) (en banc)). 

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The district court had before it the updated presentence report and heard the

arguments offered by Kirlin. It mentioned the § 3553(a) factors focusing on “the

nature and circumstances of the offense[,]” the need to “reflect the seriousness of the

offense [and] . . . promote respect for the law, . . . afford adequate deterrence to

criminal conduct[,] . . . protect the public from further crimes [and] . . . provide the

defendant with needed . . . correctional treatment.” 18 U.S.C. § 3553(a)(1), (2). We

conclude that the sentence imposed in this case was not an abuse of discretion.

United States v. Boykin, 850 F.3d 985, 988 (8th Cir. 2017) (per curiam) (affirming

the district court’s upward variance where the court gave increased weight to

particular § 3553(a) factors).

For the foregoing reasons, we affirm. 

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