United States of America v. Jessica Marie Mack

United States Court of Appeals
For the Eighth Circuit
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No. 24-1462
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Jessica Marie Mack
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Jefferson City
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Submitted: January 13, 2025
Filed: July 1, 2025
[Unpublished]
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Before LOKEN, ARNOLD, and KELLY, Circuit Judges.
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PER CURIAM.
In October 2019, Jessica Mack pleaded guilty to being a felon in possession of
a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) and was sentenced to
48 months imprisonment, followed by three years of supervised release. In July 2023,
prior to her release from Bureau of Prisons custody, Mack was placed at a residential

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release center but was terminated from that program two months later for attempted
assault on staff and returned to federal custody at a county jail. She was released and
began her supervised release term on October 20, 2023.
One week later, Mack tested positive for cocaine, which she admitted using
with her mother. She entered a sober living program but continued to test positive
for cocaine. She transitioned to a residential drug treatment program but was
discharged due to additional positive drug tests. She returned to the sober living
program but relapsed and told her probation officer that she would no longer benefit
from further treatment.
On January 2, 2024, Mack’s probation officer submitted a Violation Report
alleging violations of a mandatory condition of supervised release -- unlawful use of
a controlled substance -- and a special condition -- participation in substance abuse
counseling and approved drug testing. The Report listed positive urinalysis test
results for cocaine on four dates between October 26 and December 6, 2023. On
January 8, the district court1 ordered Mack to appear on January 18 for a show cause
supervised release revocation hearing. On January 12, the probation officer
submitted a Supplemental Violation Report alleging a positive urinalysis test for
cocaine and marijuana on December 26 and a January 2 violation of the mandatory
condition that Mack not commit a new law violation because she was cited for
assaulting a gas station attendant during an altercation over the temperature of a cup
of coffee. The Report stated that during a home visit on January 11, Mack became
so contentious when the probation officer attempted to discuss the assault arrest that
the officer terminated the visit without obtaining a urinalysis sample.
1The Honorable Roseann A. Ketchmark, United States District Judge for the
Western District of Missouri.
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At the January 18 show cause hearing, Mack admitted the four Grade C
supervised release violations stemming from her positive drug tests. The government
agreed to proceed without presenting evidence on the alleged assault violation, which
Mack disputed. As Mack is in Criminal History Category VI of the advisory
sentencing guidelines, this resulted in a revocation guidelines range of 8 to 14 months
imprisonment. See USSG § 7B1.4(a). The government requested a sentence of 12
months imprisonment followed by 12 months of supervised release. Mack requested
that her supervised release continue with “regular group counseling in the evenings”
and submitted letters from her employer and people now working with her stating that
“she is making real improvement and doing well.”
The court then heard arguments from both counsel and a lengthy statement by
Mack explaining that she has turned her life around, has stopped using cocaine for
the first time since she was ten years old, and was committed to her new job. The
court revoked supervised release and imposed a sentence of 18 months imprisonment
followed by 18 months of supervised release. Noting that Mack “has a history of
being assaultive, rude, disrespectful, aggressive to law enforcement, to folks in the
community,” that she “can be very assaultive” when she “steals stuff,” and that she
“has a history of pairing up with her mom for drug use,” the court explained:
The Court has placed you in a position that you are to abide by the
conditions of your supervision, and you scoffed at the Court’s orders,
the efforts that have been made, the expense that the federal government
has been willing to invest in your treatment opportunities and to no avail
and you continue to just keep breaking that trust.
In response to Mack’s request for no period of supervised release following the term
of imprisonment, the court explained:
I do think she needs to be on a term of supervision if she is sincere about
wanting to turn her direction and remain sober. I don’t see the downside
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of 18 months of supervision and that would also provide an incentive.
She knows this Court is not going to tolerate any continued drug use or
disrespectful, assaultive conduct.
On appeal, Mack argues that her sentence is substantively unreasonable
because the court varied upwards based on her longstanding addiction and continued
drug use, which should be treated differently from “objectively more troubling
conduct like continuing to commit crimes.” Her Grade C violations, the least serious
category of supervised release violations, should not have warranted an upward
variance. As Mack acknowledges, we review a supervised release revocation
sentence under the same deferential “reasonableness” standard that applies to initial
sentencing proceedings. United States v. Merrival, 521 F.3d 889, 890 (8th Cir.
2008). “[I]t will be the unusual case when we reverse a district court sentence --
whether within, above, or below the applicable Guidelines range -- as substantively
unreasonable.” United States v. Feemster, 572 F.3d 455, 464 (8th Cir. 2009) (en
banc) (quotation omitted).
The district court did not abuse its substantial sentencing discretion in varying
four months upward from the top of the advisory guidelines range. The court
explained that it imposed an upward variance based on Mack’s continued inability
to abide by the conditions of her supervised release -- multiple failed drug tests and
her refusal to meaningfully participate in drug treatment opportunities -- and her
extensive and violent criminal history. “We have repeatedly upheld revocation
sentences that varied upward from the advisory guidelines range because the
defendant was a recidivist violator of supervised release conditions.” United States
v. Harris, 55 F.4th 1162, 1164 (8th Cir. 2022) (quotation omitted); accord United
States v. Kocher, 932 F.3d 661, 664 (8th Cir. 2019). The court properly invoked the
§ 3553(a) sentencing factors, explaining that the sentence is meant to deter Mack’s
continued drug use and protect Mack and the public. Mack did not object that the
court was impermissibly relying on a § 3553(a) factor that is excluded from
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consideration in revoking a term of supervised release under § 3583(e), and the
court’s explanation did not establish plain error. See Esteras v. United States, 2025
WL 1716137, at *10 (U.S. June 20, 2025). Mack’s disagreement with how the court
weighed the § 3553(a) factors does not establish an abuse of its discretion. United
States v. Jones, 71 F.4th 1083, 1087 (8th Cir. 2023).
That Mack committed only Grade C violations after the alleged new law
violation was not pursued does not preclude an upward variance if it is otherwise
warranted. See, e.g., United States v. Starr, 111 F.4th 877, 879-80 (8th Cir. 2024)
(affirming 15-month upward variance based on continued fentanyl use and failure to
complete residence at a sober living facility). Nor is this a case like United States v.
Michael, where we remanded for resentencing because the district judge who
presided over the revocation sentencing, but not the original sentencing, did not
demonstrate sufficient familiarity with significant mitigating circumstances and failed
to explain the imposition of a sentence seven years above the advisory guidelines
range. 909 F.3d 990, 995 (8th Cir. 2018). Here, the district court sentenced Mack
originally, was familiar with the circumstances leading up to her supervised release
violations, considered the mitigating circumstances emphasized by Mack and her
counsel, and adequately explained its reasons for varying upward.
The judgment of the district court is affirmed.
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