United States of America v. Levi Shelby Roe

United States Court of Appeals
For the Eighth Circuit
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No. 20-2626
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United States of America
Plaintiff - Appellee
v.
Levi Shelby Roe
Defendant - Appellant
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No. 20-2627
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United States of America
Plaintiff - Appellee
v.
Levi Shelby Roe
Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Eastern
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Submitted: June 18, 2021
Filed: August 16, 2021
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Before GRUENDER, BENTON, and STRAS, Circuit Judges.
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BENTON, Circuit Judge.
Levi S. Roe pled guilty to possessing a firearm as a felon, and admitted
violating his supervised release. In a consolidated sentencing, the district court1
imposed consecutive sentences of 120 months for the firearm conviction and 36
months for the supervised-release violation, totaling 156 months. Roe appeals both
sentences. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
In 2009, Roe was convicted of drug conspiracy. In 2018, while on supervised
release for that conviction, he assaulted a man. When police arrested him, they found
a loaded Star, .22 caliber, semi-automatic pistol and .22 caliber ammunition.
In one of the two cases on appeal (20-2626), he pled guilty to possessing the
firearm. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). In the other case on appeal (20-
2627), he admitted violating his supervised release. See also 18 U.S.C. § 3583(g)(2)
(“If the defendant possesses a firearm . . . the court shall revoke the term of
supervised release and require the defendant to serve a term of imprisonment . . . .”).
Roe argues that the district court “double-counted” by considering the
firearm-possession twice—once for the firearm sentence and again for the
supervised-release sentence.
This court reviews sentences under a deferential abuse-of-discretion standard.
United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc); United
States v. DeMarrias, 895 F.3d 570, 572-73 (8th Cir. 2018) (reviewing for abuse of
discretion a sentence imposed upon revocation of supervised release). This court
“review[s] a district court’s decision to impose a consecutive or concurrent sentence
for reasonableness.” United States v. Kreitinger, 576 F.3d 500, 504 (8th Cir. 2009).
1 The Honorable John A. Jarvey, Chief Judge, United States District Court for
the Southern District of Iowa.

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The parties both state that the standard of review is abuse of discretion and
reasonableness, but this court reviews de novo “whether a district court’s application
of the sentencing guidelines resulted in impermissible double-counting.” United
States v. Jones, 951 F.3d 918, 919 (8th Cir. 2020).
Double counting occurs “when precisely the same aspect of a defendant’s
conduct factors into his sentence in two separate ways.” United States v. Bryant,
913 F.3d 783, 787 (8th Cir. 2019). The district court did not double count here.2
The firearm sentence and the supervised-release sentence “penalize distinct aspects
of [Roe’s] conduct and distinct harms.” See United States v. Waldner, 580 F.3d
699, 707 (8th Cir. 2009), quoting United States v. Smith, 516 F.3d 473, 476 (6th
Cir. 2008). The firearm sentence penalizes Roe for being a felon in possession of a
firearm. The supervised-release sentence penalizes him for violating his supervised
release. See Jones, 951 F.3d at 919-20 (rejecting defendant’s argument that
“double-counting occurred when the guidelines calculation included both the drugs
seized . . . and a consideration of his supervised release status” because the sentence
penalized him separately for offense level and criminal history); United States v.
Louderback, 447 Fed. Appx. 754, 755-56 (8th Cir. 2011) (per curiam) (unpublished)
(no abuse of discretion in considering a violation of supervised release in both the
sentence for the underlying offense and the sentence for violating supervised
release).
Regardless, the supervised-release sentence did not rest solely on the firearm
offense—he separately assaulted someone. See United States v. Moore, 281 F.3d
1279, 2001 WL 1692476, at *3 (5th Cir. 2001) (unpublished table opinion) (no
double counting where “there is no evidence that the revocation turned on the
2 Double-counting concerns may not be implicated at all when a defendant
receives two separate sentences. Cf. United States v. Canamore, 916 F.3d 718,
720-21 (8th Cir. 2019) (per curiam) (addressing whether it was proper to apply
overlapping Guidelines provisions in determining the sentence for a single felon-
in-possession conviction). Because this point was not briefed or argued, this court
need not address it.

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conduct underlying [the defendant’s] federal conviction” because defendant had
“violated his probation numerous times”).
The Sentencing Guidelines instruct courts to do what the district court did
here: (1) add criminal history points because Roe committed the firearm offense
while on supervised release; and (2) sentence him consecutively for the firearm
offense and the revocation. See U.S.S.G. § 4A1.1(d) (instructing courts to add
criminal history points “if the defendant committed the instant offense while under
any criminal justice sentence, including . . . supervised release”); § 7B1.3(f) (“Any
term of imprisonment imposed upon the revocation of . . . supervised release shall
be ordered to be served consecutively to any sentence of imprisonment that the
defendant is serving, whether or not the sentence of imprisonment being served
resulted from conduct that is the basis of the revocation of . . . supervised release.”);
cf. United States v. Woodard, 675 F.3d 1147, 1152-53 (8th Cir. 2012) (no abuse of
discretion where district court ordered consecutive terms of imprisonment for
supervised-release violation and contempt-of-court conviction).
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The judgments are affirmed.
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