United States Court of Appeals

For the Eighth Circuit

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No. 13-2552

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Andrew G. Brown

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the District of Nebraska - Omaha

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 Submitted: December 16, 2013

 Filed: February 3, 2014

[Unpublished]

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Before MURPHY, BYE, and SMITH, Circuit Judges.

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PER CURIAM. 

Andrew Brown appeals the sentence imposed by the district court for violation 1

of his supervised release. In 2005 Brown pled guilty to federal drug and firearm

The Honorable Laurie Smith Camp, Chief Judge of the United States District 1

Court for the District of Nebraska. 
charges and was sentenced to 195 months imprisonment and 60 months supervised

release; his sentence was later reduced to 165 months. After Brown was released

from prison, he violated conditions of his release more than once and his release was

revoked for the second time in June 2013. He argues that the revocation sentence

imposed by the district court was substantively unreasonable. We affirm.

Brown, who has a history of drug and alcohol abuse, was released from

confinement in March 2011 and was subsequently placed in four different treatment

programs. He left the first prior to its completion and the second before its start. He

wasremoved from a third program and did not appear for the fourth. Brown'srelease

was then revoked in February 2012 after he had admitted to violations. He was

sentenced as a result to 13 months imprisonment and 36 months supervised release. 

In November 2012 Brown was again released. He checked into a pretreatment

program with the assistance of the probation office but left prior to its start. After a

car in which he was riding was stopped by the Omaha police in February 2013, 

Brown walked away and gave a false name when apprehended within a few blocks. 

Brown then pled guilty to criminal impersonation, a class IV felony. At a revocation

hearing on June 27, 2013, he admitted that he had violated the terms of his release by

committing criminal impersonation. His guideline range was calculated as 18 to 21

months imprisonment, and the probation office recommended a sentence of 24

months with no supervised release. The district court sentenced Brown to 21 months

imprisonment and 23 months supervised release, stating that the supervised release

was for the purpose of protecting society. 

When no procedural error has been alleged, we review the substantive

reasonableness of a sentence for abuse of discretion. United States v. Shepard, 657

F.3d 682, 685 (8th Cir. 2011); United States v. Feemster, 572 F.3d 455, 461 (8th Cir.

2009) (en banc). An abuse of discretion occursif a sentencing court "fails to consider

a relevant factorthatshould have received significant weight, gives significant weight

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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.

Watson, 480 F.3d 1175, 1177 (8th Cir. 2007). We may "apply a presumption of

reasonableness" to a sentence within the guideline range. Feemster, 572 F.3d at 461

(internal quotation marks omitted) (citing Gall v. United States, 552 U.S. 38, 51

(2007)). Brown argues that his sentence is substantively unreasonable because it is

greater than necessary to serve the purposes of 18 U.S.C. § 3553(a). 

We conclude that the sentence imposed by the district court was not

unreasonable. Brown argues that his revocation sentence should have been shorter

because his state law criminal impersonation crime could have been charged as the

misdemeanor offense of false reporting, which would have resulted in a lower

sentencing guideline range. He pled guilty to the felony charge of criminal

impersonation, however. Brown also argues that he has been open with the probation

office about his addiction and that his efforts to receive treatment have been

complicated by a psychological disability. The district court indicated at sentencing

that it was aware of his problems but nevertheless imposed a sentence at the top of

the guideline range and stated that the supervised release was needed to protect

society. 

Although Brown's sentence was at the top of the guideline range, he had twice

violated his supervised release and had removed himself from treatment programs. 

We have previously affirmed a revocation sentence above the guideline range when

the respondent was "unlikely to undergo rehabilitation without the constant

supervision provided by incarceration." United States v. Bear Robe, 521 F.3d 909,

911 (8th Cir. 2008). We have also affirmed a sentence above the guideline range

when the court noted "repeated violations of . . . supervised release, the relative

severity of those violations, and the significant downward departure granted at [the

defendant's] originalsentencing." United States v. Jasper, 338 F.3d 865, 867 (8thCir.

2003). 

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After reviewing the whole record, we conclude that the district court did not

abuse its discretion in imposing Brown's sentence for violating the conditions of his

supervised release. Accordingly, we affirm. 

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