United States Court of Appeals

For the Eighth Circuit

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No. 14-1071

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Scott Wayne Pitts

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Western District of Arkansas - Fayetteville

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 Submitted: November 11, 2014

Filed: November 17, 2014

[Unpublished]

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Before BYE, SHEPHERD, and KELLY, Circuit Judges.

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PER CURIAM.

Scott Wayne Pitts appeals the thirty-month sentence imposed by the district

court1

 after he pleaded guilty to transmitting in interstate commerce a communication

1

The Honorable Jimm Larry Hendren, United States District Judge for the

Western District of Arkansas.
containing a threat to injure the person of another in violation of 18 U.S.C. § 875(c). 

Pitts argues his sentence is substantively unreasonable and the district court erred in

imposing an upward variance in violation of Tapia v. United States, --- U.S. ----, 131

S. Ct. 2382 (2011). We affirm.

I

In 2012, Alexa Baker, Pitts's ex-girlfriend, was pregnant with his child. After

giving birth, she decided to place the child for adoption through Bethany Christian

Services ("BCS"), a non-profit organization offering adoption services. Although he

initially opposed it, in August 2012, Pitts signed the papers allowing the adoption. 

Several days after the deadline to withdraw his consent, Pitts called Sarah Jones, the

director of BCS, and indicated he no longer wished to go through with the adoption. 

When he learned it was too late, Pitts began to threaten and harass Jones.

Over the course of several months, Pitts made numerous phone calls to, and left

voice mails for, Jones in which he made repeated and heinous violent threats. He

stated he would punish Jones for stealing his baby by stealing Jones's child to replace

his. He threatened to blow up BCS and set Jones on fire. He repeatedly told Jones he

would kill her, he was not afraid to die in carrying out his vengeance, and he was not

concerned about police involvement or going to jail. In one voice mail, he stated, "I

will stop at nothing, I don't care if it kills me or puts me in jail for the rest of my life,

to punish all of you who are responsible for this . . . I will punish you in some way,

or die trying." He also told Jones that if he goes to jail, all he would do is think of

ways he could kill her after his inevitable release. Even after he was arrested, Pitts

told the officers that he would "do what [he] said [he'd] do."

The government indicted Pitts on January 16, 2013, charging him with two

counts of violating 18 U.S.C. § 875(c) and one count of violating 18 U.S.C. § 844(e). 

After reaching a plea agreement with the Government, Pitts pleaded guilty to one

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count of violating 18 U.S.C. § 875(c). The final presentence investigation report

("PSR") recommended an advisory guideline sentence of ten to sixteen months'

imprisonment, based on a criminal history category of I and a total offense level of 12. 

There were no objections to the PSR relevant to the sentence computation. In his

sentencing memorandum, Pitts requested a ten-month sentence. The government

requested an upward departure or variance for a total sentence of thirty months. After

considering the arguments of counsel, the district court imposed an upward variance

and sentenced Pitts to thirty months of imprisonment.2

2

The parties disagree about whether the district court imposed an upward

departure or an upward variance. There was indeed some confusion on the issue at

the district court. In its motion, the government used both terms interchangeably

throughout, but its entire argument was based on the § 3553(a) factors. During the

sentencing hearing, although it continually used the term "departure," the district court

relied on the § 3553(a) factors without any reference to a specific departure provision,

and specifically stated it was imposing the sentence "in light of the sentencing

considerations under 18 U.S. Code, Section 3553(A) to which the Court has

previously alluded." The Statement of Reasons filed by the district court likewise

reflects that the § 3553(a) factors were the basis for the sentence. After reviewing the

record, we find the district court, in fact, granted an upward variance based on the

§ 3553(a) factors–not an upward departure. See United States v. President, 451 F.

App'x 623, 625 n.2 (8th Cir. 2012) (noting "the district court actually imposed an

upward variance" because it "expressly relied on 18 U.S.C. § 3553 factors . . . rather

than a departure from the Guidelines"); see also United States v. Solis-Bermudez, 501

F.3d 882, 884 (8th Cir. 2007) (explaining the difference between a departure and a

variance). Because we find the ultimate sentence reasonable, such conflation between

the two terms was harmless error. United States v. Dehghani, 550 F.3d 716, 723 n.4

(8th Cir. 2008) (finding harmless error where "the district court used the term

'departure' when sentencing [the defendant], [but] the court's considerations clearly

demonstrate that it actually imposed a variance under the § 3553(a) factors"); United

States v. Richart, 662 F.3d 1037, 1048 (8th Cir. 2011) (holding distinction immaterial

where "the district court appropriately considered and explained the relevant § 3553(a)

factors").

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II

A

Pitts challenges the substantive reasonableness of his sentence. Our first task

under this inquiry is to "ensure that the district court committed no significant

procedural error." United States v. Washington, 515 F.3d 861, 865 (8th Cir. 2008). 

Having found no such error, we move on to the second task: considering the

substantive reasonableness of the sentence under an abuse-of-discretion standard. See

id.; United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) ("When

we review the imposition of sentences, whether inside or outside the Guidelines range,

we apply a deferential abuse-of-discretion standard." (internal quotation marks

omitted)).3

 "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 or irrelevant factor; or (3) considers only the appropriate factors

but in weighing those factors commits a clear error of judgment." Feemster, 572 F.3d

at 461 (internal quotation marks omitted). As we have explained, "it will be the

unusual case when we reverse a district court sentence–whether within, above, or

below the applicable Guidelines range–as substantively unreasonable." Id. at 464

(quoting United States v. Gardellini, 545 F.3d 1089, 1090 (D.C. Cir. 2008)).

3

Citing United States v. Waller, 689 F.3d 947, 960 (8th Cir. 2012) (per curiam),

the government argues we review the imposition of an upward variance for plain error

when the defendant fails to object. However, "[a] defendant need not object to

preserve an attack on the substantive reasonableness of a sentence." United States v.

Burnette, 518 F.3d 942, 946 (8th Cir. 2008). Here, Pitts argues the variance was

improper because it was in violation of Tapia, which we analyze below under a plainerror analysis. With respect to his challenge of the length of his sentence, no explicit

objection was necessary. See United States v. Wiley, 509 F.3d 474, 476-77 (8th Cir.

2007).

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Nothing in the record indicates the district court failed to consider a relevant

factor, gave improper weight to an irrelevant factor, or committed a clear error of

judgment in weighing the appropriate factors. To the contrary, the district court's

analysis demonstrates it properly considered the 18 U.S.C. § 3553(a) factors. In

imposing the above-guidelines sentence, the court emphasized the frequent,

prolonged, and heinous nature of the threats, made "with the tenacity of a bulldog,"

and the impact those threats had on the victim and her family. The court noted Pitts

relentlessly threatened Jones, threatened to take her children, blow up her place of

work, and set her on fire, and showed no deterrence from potential police involvement

or imprisonment. The court acknowledged a two-level enhancement for more than

two threats was appropriate but believed it did not "fully . . . capture the nature and

circumstances of the offense." The court had "wide latitude to weigh the § 3553(a)

factors" and assign some factors greater weight than others. United States v. Bridges,

569 F.3d 374, 379 (8th Cir. 2009). It was within the court's discretion to give "greater

weight to the nature and circumstances of the offense than to other § 3553(a) factors." 

United States v. Hummingbird, 743 F.3d 636, 638 (8th Cir. 2014). Although the court

imposed a significant upward variance, we find no abuse of discretion. See, e.g.,

United States v. Hutterer, 706 F.3d 921, 926 (8th Cir. 2013) (affirming an upward

variance because the threats were graphic, violent, targeted the victim's family, and

made over an extended period of time); Waller, 689 F.3d at 960-61; United States v.

Rutherford, 599 F.3d 817, 822 (8th Cir. 2010).

B

Pitts also argues the district court lengthened his sentence in violation of Tapia

v. United States, --- U.S. ----, 131 S. Ct. 2382 (2011). Because Pitts did not object on

any grounds related to Tapia, we review the issue for plain error. See United States

v. Blackmon, 662 F.3d 981, 986 (8th Cir. 2011). Pitts must therefore show: "(1) an

error; (2) that is plain; and (3) that affects substantial rights." Id. (quoting United

States v. Bain, 586 F.3d 634, 640 (8th Cir. 2009)) (internal quotation marks omitted). 

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In Tapia, the Supreme Court held a district court "may not impose or lengthen

a prison sentence to enable an offender to complete a treatment program or otherwise

to promote rehabilitation." Tapia, 131 S. Ct. at 2393. Thus, "[a]lthough a sentencing

court can discuss the opportunities for rehabilitation within prison or the benefits of

specific treatment or training programs, it may not select the length of the sentence to

ensure completion of a rehabilitation program." United States v. Olson, 667 F.3d 958,

961 (8th Cir. 2012) (internal quotation marks and alterations omitted). Here, during

the sentencing hearing, the district court very briefly mentioned Pitts's need for

rehabilitation. However, in response to Pitts's counsel's request for mental health

treatment, the court explained it loathed "to direct the Bureau of Prisons to embark

upon a treatment" that may not be available. It would be difficult to surmise that the

district court sentenced Pitts to receive treatment it was not sure was available to him. 

Morever, the court provided a detailed explanation that the upward variance was based

on the persistence and heinous nature of the threats. After reviewing the sentencing

record, we find the district court imposed the sentence based on consideration of the

relevant sentencing factors–not to enable treatment. Thus, we find no error. See

Blackmon, 662 F.3d at 987 (holding court's discussion of BOP's drug program not

dispositive); United States v. Pickar, 666 F.3d 1167, 1169 (8th Cir. 2012) (finding no

plain error where court noted "that a long sentence is necessary to provide [the

defendant] with needed care and treatment" because "no suggestion that the court

lengthened the sentence on account of this factor").

III

Accordingly, we affirm the judgment of the district court.

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