United States of America v. Deaviea David Brown

United States Court of Appeals
For the Eighth Circuit
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No. 20-1377
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United States of America
Plaintiff - Appellee
v.
Deaviea David Brown
Defendant - Appellant
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Appeal from United States District Court
for the District of Nebraska
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Submitted: November 16, 2020
Filed: February 2, 2021
[Unpublished]
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Before BENTON, ERICKSON, and GRASZ, Circuit Judges.
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PER CURIAM.
The district court1 sentenced Deaviea David Brown to 30 months of
imprisonment after Brown pled guilty to being a felon in possession of
ammunition—a single bullet. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). On appeal,
1 The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.

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Brown contends that sentence is substantively unreasonable and violates the Eighth
Amendment. We affirm.
We review a sentence’s substantive reasonableness under a deferential abuse
of discretion standard. United States v. Mitchell, 914 F.3d 581, 587 (8th Cir. 2019).
Under that “narrow and deferential” standard, “it will be the unusual case when we
reverse a district court sentence—whether within, above, or below the applicable
[United States Sentencing] Guidelines range—as substantively unreasonable.”
United States v. Feemster, 572 F.3d 455, 464 (8th Cir. 2009) (en banc) (quoting
United States v. Gardellini, 545 F.3d 1089, 1090 (D.C. Cir. 2008)). And “[w]e
presume sentences within the Guidelines recommended range are reasonable.”
United States v. DaCruz-Mendes, 970 F.3d 904, 910 (8th Cir. 2020).
A district court abuses its discretion if “it . . . fails to consider a relevant factor
that should have received significant weight . . . [or] gives significant weight to an
improper or irrelevant factor.” United States v. Berry, 930 F.3d 997, 1000 (8th Cir.
2019) (alterations in original) (quoting Feemster, 572 F.3d at 461).
Because Brown’s sentence is at the bottom of the Guidelines range, we
presume the sentence is reasonable. Brown did not rebut that presumption. We also
note that during the sentencing hearing, the district court specifically addressed the
§ 3553(a) factors. 18 U.S.C. § 3553(a); United States v. Duke, 932 F.3d 1056, 1061
(8th Cir. 2019) (clarifying that a sentencing court must consider the § 3553(a) factors
but need not expressly make an individualized assessment of each one). We see no
basis to conclude either that the district court improperly weighed the § 3553(a)
factors or that the sentence it imposed was substantively unreasonable. See United
States v. Long, 906 F.3d 720, 727 (8th Cir. 2018) (emphasizing the district court’s
discretion to weigh the sentencing factors).
We next address Brown’s suggestion that the sentence violates the Eighth
Amendment. “The Eighth Amendment, which forbids cruel and unusual

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punishments, contains a narrow proportionality principle that applies to noncapital
sentences.” United States v. Garth, 929 F.3d 967, 969 (8th Cir. 2019) (cleaned up)
(quoting Ewing v. California, 538 U.S. 11, 20 (2003) (plurality opinion)). Under
this proportionality principle, “[a]n Eighth Amendment violation may be found only
in the rare case in which a threshold comparison of the crime committed and the
sentence imposed leads to an inference of gross disproportionality.” United States
v. James, 564 F.3d 960, 964 (8th Cir. 2009) (quoting United States v. Whitehead,
487 F.3d 1068, 1070 (8th Cir. 2007)). Also, the proportionality principle in Eighth
Amendment law is quite limited. See United States v. Paton, 535 F.3d 829, 837 (8th
Cir. 2008) (“Successful challenges to the proportionality of particular [noncapital]
sentences are exceedingly rare.” (quoting United States v. Weis, 487 F.3d 1148, 1153
(8th Cir. 2007))).
Under this standard, the proportionality argument presented simply lacks
sufficient basis for this court to conclude that Brown’s sentence—which was at the
bottom of the recommended Guidelines range—is one of those “exceedingly rare”
cases that raises the gross-disproportionality inference. While 30 months of
imprisonment for possession of a single bullet may seem, on its surface,
disproportionate, the penalty relates to the prohibition on convicted felons
possessing ammunition of any amount. The sentence does not violate the Eighth
Amendment.
The district court’s judgment is affirmed.
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