United States of America v. Bernard Manuel

United States Court of Appeals
For the Eighth Circuit
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No. 22-2688
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Bernard Manuel
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: April 10, 2023
Filed: July 20, 2023
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Before LOKEN, SHEPHERD, and KELLY, Circuit Judges.
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LOKEN, Circuit Judge.
In 2011, Bernard Manuel pleaded guilty to being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). The district court imposed a 96-month
sentence followed by three years of supervised release. Manuel served that sentence
and began supervised release in October 2018. In February 2020, the district court
revoked supervised release based on a domestic violence incident. After serving an
additional year in custody, Manuel began a new one-year term of supervised release

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in January 2021. On April 1, 2021, while serving this second term, Manuel was
arrested by Kansas City police officers for possessing a firearm used in a shooting
earlier that day. Manuel’s probation officer initiated supervised release revocation
proceedings. Manuel pleaded guilty to a new felon-in-possession charge.
At a combined supervised release revocation and sentencing hearing in August
2022, the district court1 revoked Manuel’s supervised release and imposed a 24-
month sentence for the violations and a consecutive 96-month sentence for his new
felon-in-possession conviction. Manuel appeals, arguing “the district court abuse[d]
its discretion by imposing a substantively unreasonable total sentence of 120 months’
imprisonment.” Reviewing the substantive reasonableness of Manuel’s sentence
under a deferential abuse of discretion standard, we affirm. See United States v.
Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (standard of review).
A. The Offense Conduct. On the morning of April 1, 2021, officers
responded to a shots-fired call near East 90th Terrace and Kentucky Avenue in
Kansas City. Witnesses reported hearing ten to twelve shots fired. Officers
recovered 13 spent 9-millimeter shell casings in the intersection. They learned that
one bullet had shattered the front window of a nearby residence, nearly striking -- and
badly frightening -- the home’s female occupant and her infant son. A witness
observed a white Chevrolet Malibu speeding away from the area after the gunfire.
Later that day, officers received an anonymous tip that the shooter was sitting
in a white Chevrolet Impala in a parking lot at the intersection of 43rd Street and
Indiana Avenue. Responding, officers ordered the occupant -- later identified as
Manuel -- to exit the bullet-ridden vehicle. Manuel eventually opened the driver’s
side door, told the officers to “shoot me,” and tossed his shoes into the parking lot.
1The Honorable David Gregory Kays, United States District Judge for the
Western District of Missouri.
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As he did so, a 9-millimeter Taurus semiautomatic handgun fell onto the ground from
Manuel’s lap. The handgun, reported stolen in October 2020, contained eleven live
rounds of ammunition. As he was taken into custody and placed in a police vehicle,
Manuel spat at, kicked, and attempted to bite the officers. Laboratory testing
confirmed that the Taurus handgun was the gun used in the earlier shooting.
B. The Hearing. At the August 2022 combined hearing, the district court first
overruled Manuel’s objection to a four-level enhancement for using or possessing the
Taurus handgun in connection with another felony offense. See USSG
§ 2K2.1(b)(6)(B). Defense counsel argued that, while Manuel admitted to being in
possession of the handgun when he was arrested, “he absolutely denies having
anything to do with the shooting.” After reviewing the undisputed circumstantial
evidence summarized in the Presentence Investigative Report, the district court found
that the enhancement is supported by a preponderance of the evidence, resulting in
an advisory guidelines range of 37 to 46 months imprisonment for the new felon-in-
possession offense. That finding is not challenged on appeal.
The district court then revoked Manuel’s supervised release for his earlier
felon-in-possession conviction and imposed a sentence of 24 months imprisonment
for the supervised release violations, the top of the advisory guidelines sentencing
range and the statutory maximum revocation sentence the court could impose. See
USSG §§ 7B1.1(a)(2), 7B1.4(a) & (b)(3)(A); 18 U.S.C. §§ 3559(a)(3), 3583(e)(3).
The court then turned to the sentence to be imposed for Manuel’s 2021
felon-in-possession offense. The government requested an upward variance to a
concurrent sentence of not less than 96 months imprisonment, emphasizing this is
Manuel’s second felon-in-possession conviction, his second supervised release
revocation, his involvement in the shooting, his aggressive resistance to being
arrested, and his extensive criminal history. Defense counsel and Manuel in
allocution urged a sentence at the high end of the guidelines range of 37 to 46 months
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imprisonment and indicated no objection if the court then imposed a consecutive 24-
month revocation sentence.
Applying the 18 U.S.C. § 3553(a) sentencing factors, the district court varied
upward from the advisory range and imposed a sentence of 96 months imprisonment
for the felon-in-possession offense and a consecutive 24-month revocation sentence.
The court emphasized the reckless severity of Manuel’s crime, noting one bullet fired
during the shooting nearly struck a woman and her infant son. It further explained:
[W]e’re dealing with . . . a person with a very serious violent record in
your criminal history. We’re dealing with someone who basically tries
to bite law enforcement officers, and kick them . . . when they’re doing
their job. . . . [As defense counsel] pointed out, it’s . . . a drug addiction
in many respects we’re dealing with. And so I am going to send you to
[the] RDAP program . . . I hope you choose to [participate]. . . .
But you don’t get less time the more crimes you commit . . . . If
you keep committing the same crime it’s going to be more time than you
got last time. . . . [W]e hope this deterrent effect . . . will have some
influence on you, and that you’ll choose not to commit these crimes in
the future.
The factors that are important here . . . include the need to protect
the public from further crimes . . . [t]he need for deterrence . . . the need
for respect for the law, consideration of your history and your
characteristics. You . . . do get credit . . . for taking responsibility and
being honest about the gun. . . . [S]o that’s going to save you some time
today. And since you’re getting time on the supervised release, I’m not
going to increase the . . . sentence . . . on the underlying sentencing case.
C. Discussion. Manuel appeals, arguing the total sentence is substantively
unreasonable because it is greater than necessary to comply with basic sentencing
objectives. Manuel contends that the court placed too much weight on the
seriousness of his offense when he received an offense level enhancement for using
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the Taurus handgun in connection with the April 1 shooting. The court placed too
much weight on Manuel’s criminal history, considering prior convictions that have
“aged out” of the Guidelines’ criminal history points calculation. And the court
improperly varied upward because of Manuel’s drug addiction. He argues these
factors do not warrant an upward variance nearly five years above the low end of the
advisory guidelines range.
Manuel’s brief on appeal ignores an essential component of the district court’s
decision to vary upward from the guidelines range -- “you don’t get less time the
more crimes you commit.” We have consistently rejected the argument that sentences
based on this factor are substantively unreasonable if the district court in varying
upward supported this comment with a fuller analysis of the § 3553(a) sentencing
factors. See, e.g., United States v. Johnson, 916 F.3d 701, 702 (8th Cir. 2019) (“The
need for a sentence to afford adequate deterrence is a proper consideration under
§ 3553(a)(2)(B), and the district court’s attention to the need for specific deterrence
. . . was neither impermissible nor inflexible.”); United States v. Paulino-Duarte, 670
F.3d 842, 844 (8th Cir. 2012) (“The district court properly considered the inadequate
deterrence provided by [defendant’s] prior illegal reentry sentence.”); United States
v. Burns, 771 F. App’x 724, 726 (8th Cir. 2019) (“[T]he district court’s remark . . .
that defendants do not get shorter sentences for committing more crimes . . . does not
constitute reversible error.”); United States v. Davis, 714 F. App’x 614, 615 (8th Cir.
2018) (“The court’s consideration of prior sentences in the context of deterrence was
proper.”). Indeed, in United States v. David, we affirmed an upward variance
imposed by Judge Kays in part for this reason, concluding that “the district court did
not abuse its discretion in considering [defendant’s] previous sentence as a ‘bench-
mark’ for finding the punishment that is apparently necessary to deter [defendant]
from repeating his criminal behavior.” 682 F.3d 1074, 1077-78 (8th Cir. 2012).
Here, Judge Kays carefully considered the various § 3553(a) factors and
imposed the same 96-month sentence for the new felon-in-possession offense as the
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court imposed for Manuel’s 2011 felon-in-possession offense. The court made the
24-month supervised release revocation sentence consecutive to the felon in
possession sentence, resulting in a total sentence of 120 months imprisonment, the
statutory maximum for the new felon-in-possession offense.2
The § 3553(a) issues that Manuel raises on appeal do not establish that the
court abused its substantial discretion. It is well-settled that factors taken into
account in calculating the advisory guidelines range can form the basis of an upward
variance, see, e.g., United States v. Thorne, 896 F.3d 861, 865 (8th Cir. 2018); that
sentencing courts may consider prior convictions which accrue no criminal history
points, see, e.g., United States v. Abrica-Sanchez, 808 F.3d 330, 335 (8th Cir. 2015);
and that a sentencing court may vary upward based on criminal history already
accounted for by the Guidelines, see, e.g., United States v. Barrett, 552 F.3d 724, 727
(8th Cir. 2009). The district court’s focus on Manuel’s criminal history -- including
his “aged-out” convictions -- was appropriate considering Manuel’s lengthy violent
criminal record, combative behavior when arrested, and the fact that he committed the
instant offense while on a second term of supervised release for a prior
felon-in-possession conviction. See United States v. Donahue, 959 F.3d 864, 867
(8th Cir. 2020). And the court sympathetically acknowledged Manuel’s drug
addiction problem, recommending that he participate in the Bureau of Prisons’
Residential Drug Abuse Program so he could better combat his addiction. See id.
For these reasons, we conclude the district court did not abuse its substantial
discretion by imposing a total sentence of 120 months imprisonment that included a
significant upward variance. The judgment of the district court is affirmed.
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2The advisory guidelines called for a consecutive sentence in this situation.
See USSG §§ 5G1.3(d) & comment. (n.4(C)), 7B1.3(f) & comment. (n.4).
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