United States Court of Appeals

For the Eighth Circuit

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No. 19-2126

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Stuart Cole Mitchell

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court

for the Eastern District of Arkansas - Little Rock

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Submitted: January 13, 2020

Filed: March 25, 2020

[Unpublished]

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Before BENTON, GRASZ, and STRAS, Circuit Judges.

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PER CURIAM.

In 2009, Stuart Cole Mitchell pled guilty to attempted receipt of child

pornography in violation of 18 U.S.C. § 2252(a)(2). The district court1sentenced him

1The Honorable Brian S. Miller, United States District Judge for the Eastern

District of Arkansas.
to 63 months of imprisonment, followed by five years of supervised release. The

original term of supervised release began in February 2014, but was revoked on four

different occasions for violations of the conditions of release. Two of the first three

revocations were followed by short periods of incarceration and further supervised

release. After the fourth revocation, Mitchell wassentenced to three months of home

detention, to be followed by the remaining termof supervised release. However, days

later, Mitchell violated his supervised release for the fifth time, this time for

possessing sexually explicit photographs on his cell phone. 

In May 2019, the government filed a motion to revoke Mitchell’s supervised

release based on the sexually explicit photographs on his phone, his failure to report

to his probation officer, his failure to comply with his approved location monitoring

schedule, and his failure to attend sex offender treatment. Mitchell’s recommended

sentence under the United States Sentencing Guidelines Manual (“Guidelines”) was

from three to nine months of incarceration, but 18 U.S.C. § 3583(e)(3) authorized up

to two years of incarceration. The government recommended Mitchell be sentenced

to the statutory maximum of two years of imprisonment with no further supervised

release, given Mitchell’s continuous supervised-release struggles and failure to

meaningfully engage with the treatment offered. 

During the revocation proceedings, the district judge noted that the underlying

casewas for child pornography, acknowledged that Mitchell’s supervised release was

revoked four times previously, and then concluded that the statutory maximum

sentence without any further supervision would be most appropriate “to afford

adequate deterrence to his conduct and promote respect for the law.” On appeal,

Mitchell argues the district court’s two-year sentence was procedurally and

substantively unreasonable. 

We review “a sentence imposed upon revocation of supervised release . . . for

an abuse of discretion.” United States v. White, 840 F.3d 550, 554 (8th Cir. 2016). 

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This is “the same ‘deferential abuse-of-discretion’ standard that applies to initial

sentencing proceedings.” Id. at 552 (quoting United States v. Young, 640 F.3d 846,

848 (8th Cir. 2011)). 

On appeal, Mitchell argues his sentence is procedurally unreasonable because

the district court did not consider all relevant 18 U.S.C. § 3553(a) factors, asrequired

by 18 U.S.C. § 3583(e). Specifically, Mitchell asserts the district court failed to

consider “the need to avoid unwarranted sentencing disparities” in § 3553(a)(6). 

However, the district court need not “mechanically list every § 3553(a) consideration

when sentencing a defendant upon revocation of supervised release.” United States

v. Thunder, 553 F.3d 605, 608 (8th Cir. 2009) (quoting United States v. White Face,

383 F.3d 733, 740 (8th Cir. 2004)). It is permissible to “give some factorsless weight

than a defendant prefers or more [weight] to other factors [and] that alone does not

justify reversal.” United States v. Anderson, 618 F.3d 873, 883 (8th Cir. 2010). 

Here, the district court properly considered Mitchell’s history and

characteristics, the nature and circumstances of the offense, the need for an adequate

sentence to deter future conduct, and the applicable Guidelinesrange. And, although

the district court did not specifically discuss unwarranted sentencing disparities, it

clearly considered and weighed the sentencing factors and chose to give some factors,

like § 3553(a)(6), less weight than others. Such a decision is within the district

court’s “wide latitude to weigh the § 3553(a) factors in each case and assign some

factors greater weight than others in determining the appropriate sentence.” United

States v. Bridges, 569 F.3d 374, 379 (8th Cir. 2009). Therefore, the district court did

not abuse its discretion and the sentence was procedurally reasonable.

Similarly, Mitchell argues his sentence is substantively unreasonable because

the district courtspecifically considered whether his sentence would help to promote

respect for the law under 18 U.S.C. § 3553(a)(2)(A), a factor excluded from the list

of appropriate factors to consider for revocation under 18 U.S.C. § 3583(e). 

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“However, on abuse of discretion review for substantive reasonableness, we examine

for whether the district court ‘g[ave] significant weight to an improper or irrelevant

factor.’” United States v. Hall, 931 F.3d 694, 697 (8th Cir. 2019) (alteration in

original) (quoting United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en

banc)). Here, like in Hall, the district court discussed, in support of its sentence, the

nature and circumstances of the offense, looked at Mitchell’s criminal history,

explained the need to adequately deter Mitchell’sfuture conduct — all proper factors

for consideration of revocation — and then also mentioned promoting respect for the

law. The district court’s decision here is an instance of “using an excluded factor as

an insignificant justification” resulting in “no substantive error” and therefore no

abuse of discretion. Id. 

Because we find no error, procedural or substantive, in the district court’s

revocation sentence, we affirm. 

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