United States of America v. Brett Palkowitsch

United States Court of Appeals
For the Eighth Circuit
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No. 21-2252
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United States of America
Plaintiff - Appellee
v.
Brett Palkowitsch
Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota
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Submitted: February 15, 2022
Filed: June 10, 2022
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Before LOKEN, COLLOTON, and SHEPHERD, Circuit Judges.
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SHEPHERD, Circuit Judge.
A jury found Brett Palkowitsch guilty of willfully depriving Frank Baker of
his Fourth Amendment right to be free from unreasonable force, in violation of 18
U.S.C. § 242, and the district court1 sentenced Palkowitsch to 72 months
1 The Honorable Wilhelmina M. Wright, United States District Judge for the
District of Minnesota.

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imprisonment and 3 years supervised release. Palkowitsch appeals his sentence,
arguing that the district court committed both procedural and substantive error.
Having jurisdiction under 28 U.S.C. § 1291, we affirm.
I.
Palkowitsch served for six years as a police officer in St. Paul, Minnesota. On
June 24, 2016, the St. Paul Police Department received an anonymous 911 call
reporting a fight outside an apartment building. The caller provided a description of
a black male with dreadlocks who was wearing a white t-shirt and carrying a gun.
Six officers responded to the call. The first two officers to arrive saw no signs of a
disturbance, but they did observe Baker, the victim, sitting in a parked vehicle behind
the apartment building. Baker is black, and at the time, he had dreadlocks and wore
a white t-shirt. The first two officers radioed dispatch to inform the other four
officers, including Palkowitsch, that no fight had been observed. The other officers
arrived shortly after the radio dispatch.
One of the newly arrived officers was a canine officer who had his canine with
him. After the canine officer noticed Baker, the officer ordered Baker to exit his
vehicle. Baker complied. The canine officer then ordered Baker to put his hands in
the air, and Baker began to comply. However, because the canine officer apparently
could not see both of Baker’s hands, he released the canine. The canine bit Baker’s
leg and pulled him to the ground. The other officers, including Palkowitsch,
gathered and formed a semi-circle around Baker. Baker screamed and flailed his
arms as the canine continued to bite him. Palkowitsch yelled at Baker not to move
and then kicked Baker twice in his ribcage. When the canine again pulled on Baker’s
leg, Baker sat up, leading Palkowitsch to kick him a third time in his ribcage.
Palkowitsch then handcuffed Baker, and the canine officer removed the canine.
Baker had difficulty standing and complained that he could not breathe. The officers
searched the area and found no weapons or other evidence to suggest that Baker was
involved in the incident described by the 911 caller. Palkowitsch acted contrary to
training that he received as a St. Paul police officer, which instructed that an officer

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should not use additional force once a police canine bites a suspect unless the canine
officer requests it. The canine officer never asked Palkowitsch to use force, and no
other officer used force against Baker.
An ambulance transported Baker to a hospital for medical treatment. Baker
sustained broken ribs and two collapsed lungs due to Palkowitsch’s kicks. He
underwent surgery for the collapsed lungs. Baker also sustained injuries to his leg
from the canine bites, which required a separate surgery and skin grafts. While
Baker received treatment, Palkowitsch bragged at the police station about his
actions, including the fact that his third kick “got that fucker good.” Palkowitsch
also sent a text message to another officer commenting on Baker’s broken ribs and
including a photograph of Baker lying in a hospital bed. Palkowitsch filed an
incident report, but he omitted the fact that, when he repeatedly kicked Baker, the
canine was biting Baker’s legs and Baker was screaming in pain.
The canine officer cited Baker for obstructing the legal process in connection
with the incident. Baker was charged with obstructing the legal process, but the
prosecuting attorney later dropped the charge due to insufficient evidence. Baker
subsequently filed a complaint with the St. Paul Police Department, leading it to
open an internal investigation into the incident and hold an administrative
proceeding. Two officers testified against Palkowitsch at the administrative
proceeding. In response, another officer cut out a newspaper article discussing the
incident with Baker, wrote “rat” above the photograph of one of the testifying
officers included in the article, and posted the clipping near the other testifying
officer’s locker. The canine officer who released the canine on Baker chose to testify
for Palkowitsch rather than against him in fear of retaliation. The St. Paul Police
Department terminated Palkowitsch in November 2016 for his excessive use of
force, but he was reinstated after he filed a grievance. Following Palkowitsch’s
conviction in this case, he was again terminated.
A grand jury returned a one-count indictment, charging Palkowitsch with
deprivation of civil rights under color of law in violation of 18 U.S.C. § 242. The

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indictment alleged that Palkowitsch repeatedly kicked Baker while Baker was on the
ground and incapacitated by a police canine; the offense involved the use of a
dangerous weapon, a shod foot; and the offense resulted in bodily injury to Baker.
At the conclusion of a jury trial, Palkowitsch was convicted.
Prior to sentencing, the United States Probation Office prepared a Presentence
Investigation Report (PSR). The PSR found a total United States Sentencing
Guidelines offense level of 29 and a criminal history category of I. It calculated
Palkowitsch’s Guidelines range as 87 to 108 months imprisonment. Pursuant to a
joint sentencing agreement, Palkowitsch requested a sentence of no less than 48
months imprisonment, and the United States recommended a sentence of no more
than 60 months imprisonment. In the parties’ sentencing position papers and at
sentencing, they cited comparator cases involving allegedly similar circumstances
to support their respective sentence recommendations, emphasizing the importance
of avoiding unwarranted sentencing disparities.
The district court accepted the PSR’s Guidelines range calculation and
imposed a below-Guidelines sentence of 72 months imprisonment and 3 years
supervised release. It reviewed the sentencing factors listed in 18 U.S.C. § 3553(a)
and explained why the sentence length was sufficient but not longer than necessary.
The district court emphasized Palkowitsch’s duty, as a police officer, to protect the
public and how his actions contributed to the community’s distrust of police. It also
reviewed the circumstances of the offense, highlighting Baker’s innocence and
injuries as well as the retaliation faced by officers who spoke up against Palkowitsch.
The district court welcomed Palkowitsch’s apology at sentencing, which the
sentencing agreement required, but it noted his general lack of remorse following
the incident. The district court also recognized that Palkowitsch had done “many
good things” in life and suffered collateral consequences because of the incident.
The district court did not address by name the comparator cases cited by the parties,
though it explained that the sentence was sufficient “to avoid unwarranted disparities
between [Palkowitsch’s] sentence and the sentences of defendants with similar
records who have been found guilty of similar offenses and conduct.”

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II.
Palkowitsch first argues that the district court committed procedural error by
failing to adequately explain the sentence imposed. A district court commits
procedural error if it fails to adequately explain the chosen sentence. United States
v. Godfrey, 863 F.3d 1088, 1094-95 (8th Cir. 2017). “In reviewing the sentence for
procedural errors, we review a district court’s interpretation and application of the
guidelines de novo and its factual findings for clear error.” Id. at 1095 (citation
omitted).
At sentencing, both Palkowitsch and the government cited comparator cases
involving allegedly similarly situated law enforcement officers convicted of civil
rights violations. Palkowitsch offered cases with lower sentences, while the
government highlighted cases with higher sentences, which Palkowitsch attempted
to distinguish from his own. Palkowitsch urged the district court to adopt his
sentence recommendation to avoid unwarranted disparities with the comparator
cases. Palkowitsch claims that the district court failed to address the comparator
cases and that this failure amounted to the district court erroneously rejecting a
non-frivolous argument without explanation.
The district court “must adequately explain the chosen sentence to allow for
meaningful appellate review and to promote the perception of fair sentencing.” Gall
v. United States, 552 U.S. 38, 50 (2007). “‘All that is required’ for an adequate
explanation is for the sentencing judge to ‘“set[] forth enough to satisfy [us] that he
has considered the parties’ arguments and has a reasoned basis”’ for the sentence
imposed.” United States v. Mays, 993 F.3d 607, 619 (8th Cir. 2021) (alterations in
original) (citation omitted). Notably, “[n]ot every reasonable argument advanced by
a defendant requires a specific rejoinder by the judge.” Id. (citation omitted).
This Court does not require a district court to expressly acknowledge and
address comparator cases identified by a defendant in imposing a sentence.
“Although sentencing-disparity arguments are properly raised to the district court,

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‘we decline to impose a procedural requirement that a district judge . . . must
compare and contrast the defendant under consideration with a similar offender who
has been sentenced by another federal judge.’” United States v. McElderry, 875
F.3d 863, 864 (8th Cir. 2017) (per curiam) (alteration in original) (citation omitted).
“When the argument is, as in this case, that the district court’s sentence created
unwarranted disparities with the sentences imposed on . . . unrelated offenders
by . . . different judges, there is no principled basis for an appellate court to say
which defendant[s] received the ‘appropriate’ sentence.” United States v. Keys, 918
F.3d 982, 989 (8th Cir. 2019) (alterations in original) (citation omitted).
We find the district court’s explanation of Palkowitsch’s sentence adequate.
“In determining whether a district court has adequately explained its reasons for
imposing a particular sentence, the context for the appellate court’s review is the
entire sentencing record, not merely the district court’s statements at the hearing.”
Mays, 993 F.3d at 619 (citation omitted). “[W]here, as here, ‘issues are raised in
sentencing position papers and at the sentencing hearing, a district court is presumed
to consider them.’” Id. (citation omitted). Palkowitsch offered comparator cases in
his sentencing position papers and again discussed them at sentencing. It is also
“clear from the record that the district court actually considered the § 3553(a) factors
in determining the sentence.” United States v. Fry, 792 F.3d 884, 891 (8th Cir. 2015)
(citations omitted). In providing its reasons for the sentence, the district court
specifically referenced the need “to avoid unwarranted disparities between your
sentence and the sentences of defendants with similar records who have been found
guilty of similar offenses and conduct.” The district court did not need to provide
further explanation, and accordingly we conclude it did not commit procedural error.
III.
Palkowitsch next contends that the district court imposed a substantively
unreasonable sentence. “This court reviews the substantive reasonableness of a
sentence for abuse of discretion.” United States v. Funke, 846 F.3d 998, 1000 (8th
Cir. 2017). “A district court abuses its discretion when it (1) fails to consider a

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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.” United
States v. Ballard, 872 F.3d 883, 885 (8th Cir. 2017) (per curiam) (citation omitted).
“Where, as here, a district court varies below a properly calculated Guidelines
sentence, it is ‘nearly inconceivable that the court abused its discretion in not varying
downward still further.’” United States v. Jackson, 909 F.3d 922, 925 (8th Cir. 2018)
(citation omitted).
Palkowitsch argues that his case presents a unique combination of mitigating
circumstances that warrants a shorter sentence than most defendants convicted under
18 U.S.C. § 242. Palkowitsch further claims that his sentence creates an unwarranted
sentencing disparity. Like his procedural error argument above, Palkowitsch offers
comparator cases to contend that his sentence is longer than those with similar
factual circumstances and Guidelines ranges. Finally, Palkowitsch argues that the
district court relied on irrelevant and improper factors to justify his sentence. He
highlights the district court’s discussion of Baker’s innocence and injuries,
Palkowitsch’s lack of remorse and bragging, the retaliation other officers faced after
speaking out, and how Palkowitsch’s actions contributed to the community’s distrust
of police.
Upon careful review of the record, we conclude that the district court did not
impose a substantively unreasonable sentence, as it properly considered both the
mitigating and aggravating factors listed in 18 U.S.C. § 3553. “A district court has
‘wide latitude’ to assign weight to give[n] factors, and ‘[t]he district court may give
some factors less weight than a defendant prefers or more weight to other factors,
but that alone does not justify reversal.’” United States v. Brown, 992 F.3d 665,
673-74 (8th Cir. 2021) (second alteration in original) (citation omitted). Here, the
district court expressly acknowledged several mitigating factors, including
Palkowitsch’s apology at sentencing, the “many good things” he had done in life,
and that his actions toward Baker constituted an isolated incident. The district court
also heard defense counsel explain that Palkowitsch’s actions were not motivated by

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personal animus toward Baker and that he would likely no longer work in law
enforcement. See United States v. Carnes, 22 F.4th 743, 751 (8th Cir. 2022) (“We
presume the district court properly considered issues argued by the parties at the
sentencing hearing even though the district court itself did not discuss the issues.”).
Nevertheless, the district court gave greater weight to the nature and circumstances
of Palkowitsch’s offense, his duty to protect the public as a police officer, and his
general lack of remorse until sentencing. Ultimately, Palkowitsch’s assertion that
his mitigating factors compel a shorter sentence “amounts to nothing more than a
disagreement with how the district court chose to weigh the § 3553(a) factors.” Id.
We reject Palkowitsch’s argument that his below-Guidelines sentence creates
an unwarranted sentencing disparity. “[A] district court that correctly calculates and
carefully reviews the Guidelines range necessarily gives significant weight and
consideration to the need to avoid the unwarranted disparity that the Sentencing
Commission sought to prevent through its setting of the Guidelines ranges.” United
States v. Bueno, 549 F.3d 1176, 1181 (8th Cir. 2008). Palkowitsch does not dispute
the district court’s calculation and review of the Guidelines range for his offense.
The district court further indicated its consideration of this factor listed in
§ 3553(a)(6) by explaining that Palkowitsch’s sentence was sufficient “to avoid
unwarranted disparities” with “the sentences of defendants with similar records who
have been found guilty of similar offenses and conduct.”
Finally, we conclude that the district court did not give significant weight to
any improper or irrelevant factor in fashioning Palkowitsch’s sentence. The district
court properly considered Baker’s innocence and injuries. See United States v.
Dautovic, 763 F.3d 927, 934-35 (8th Cir. 2014) (considering police officer’s
infliction of serious injury on innocent victim as aggravating circumstance in
substantive reasonableness inquiry). Though Baker was also injured by the canine,
the district court specifically identified the injuries caused by Palkowitsch—
“multiple broken ribs and two collapsed lungs”—at his sentencing. The district
court also properly noted Palkowitsch’s apparent lack of remorse before his apology
at sentencing, which the district court welcomed and acknowledged as

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“noteworthy.” See id. (mentioning district court’s consideration of defendant’s lack
of remorse). Further, the district court’s mention of the retaliation faced by other
officers who spoke up against Palkowitsch’s actions and how the incident with Baker
contributed to the community’s distrust of law enforcement was neither improper
nor irrelevant but rather reflected “the nature and circumstances of the offense.” The
district court recognized both the retaliation and increased distrust as “effects of
[Palkowitsch’s] conduct . . . . [that] were far-reaching.”
IV.
For the foregoing reasons, we affirm the judgment of the district court.
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