United States of America v. Travis Shell

United States Court of Appeals
For the Eighth Circuit
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No. 20-3719
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Travis Shell
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Western District of Arkansas - Fayetteville
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Submitted: December 13, 2021
Filed: January 14, 2022
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Before LOKEN, ARNOLD, and STRAS, Circuit Judges.
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ARNOLD, Circuit Judge.
After Travis Shell pleaded guilty to possessing methamphetamine with intent
to distribute it, see 21 U.S.C. § 841(a)(1), (b)(1)(C), and to possessing a firearm in
furtherance of a drug trafficking crime, see 18 U.S.C. § 924(c)(1)(A), he appeared

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before the district court1 for sentencing. The district court remarked at the sentencing
hearing that Sentencing Commission data showed that defendants like Shell receive
a sentence within the recommended Sentencing Guidelines range more often than not.
Shell maintains on appeal that the court's understanding of the data was incorrect, and
so he should be resentenced. We hold any error the court might have committed was
harmless, and so we affirm.
Because of Shell's age, offenses of conviction, and criminal history, the
Guidelines classified him as a career offender. See USSG § 4B1.1(a). And because
Shell stood convicted of violating 18 U.S.C. § 924(c), he fell within a subset of career
offenders for which the Guidelines recommend elevated prison terms. See USSG
§ 4B1.1(c). The government requested a sentence within Shell's Guideline range of
262–327 months' imprisonment, while Shell requested 211 months, which he said
represented the bottom of the Guidelines range that would have applied were he just
an ordinary career offender and not a § 924(c) career offender. The district court
agreed with the government's recommendation and sentenced Shell to a total prison
term of 262 months.
In arriving at the chosen sentence, the district court said that it considered "the
sentences that other similarly situated defendants" had received, see 18 U.S.C.
§ 3553(a)(6), and observed that it "does not see a whole lot of 924(c) career
offenders," so it didn't "have a whole lot of comparators." It noted, though, that it did
see "a lot of people that come before the Court that have horrific criminal histories,"
and that it didn't appear from the court's own records that it "varies downward very
often when someone has earned their stripes as a career offender."
1The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.
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The court then made the comment at the heart of Shell's appeal. It explained
that it had "also looked at the United States Sentencing Commission data for career
offenders because [it] wasn't just super familiar with sentencing statistics for 924(c)
career offenders." The court proceeded to note that the data basically showed "that
more often than not, there's a guideline range sentence that's imposed." Shell asserts
that's incorrect because the most recent data available at the sentencing hearing
showed that 56.84% of 924(c) offenders received downward variances, and another
17.514% received downward departures for substantially assisting authorities
investigate and prosecute others. See U.S. Sent'g Comm'n, Quick Facts—18 U.S.C.
§924(c)Firearms2(FiscalYear2019), https://www.ussc.gov/sites/default/files/pdf/re
search-and-publications/quick-facts/Section_924c_FY19.pdf. So, Shell maintains, "at
least 74.354% of 924(c) career offenders received sentences below the initially
applicable guideline range in fiscal year 2019." We point out, though, that Shell has
not argued for a substantial-assistance departure either before the district court or our
court, so if the district court missed the mark it did not miss it by much.
We have said that a court commits procedural error in sentencing by "selecting
a sentence based on clearly erroneous facts." See United States v. King, 898 F.3d 797,
809 (8th Cir. 2018). The district court did not advert to or cite any source to support
its statistical assertion, and we have not uncovered any obvious source that might
have informed the court's understanding. The government does not attempt to support
the court's interpretation of the statistics. We assume, without deciding, that the court
was incorrect to say that 924(c) career offenders more often than not received a
sentence within the Guidelines range.
We conclude that remand for resentencing is unwarranted. A procedural error
is harmless when it "did not substantially influence the outcome of the sentencing
proceeding," see United States v. Woods, 670 F.3d 883, 886 (8th Cir. 2012), or in
other words when "we are convinced that the error did not affect the district court's
sentencing conclusion." See United States v. Tabor, 531 F.3d 688, 692 (8th Cir.
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2008). A court's determined focus on other matters when fixing a sentence can
convince us in the appropriate case that an error didn't affect the court's sentencing
conclusion. See, e.g., United States v. Wise, 17 F.4th 785, 789 (8th Cir. 2021).
The appellant in Wise faulted the district court for mentioning in its discussion
of the dangers of heroin that some of the heroin that the appellant had distributed also
contained fentanyl, even though the government did not present evidence of that fact.
We held that any error was harmless because, as the government there had argued, the
district court did not select the sentence "because it believed fentanyl was present but
because" the drugs the appellant distributed had led to someone's death and because
of the appellant's considerable criminal history. Id. at 788–89.
Similarly, the district court here focused extensively on other matters in
selecting an appropriate sentence, only briefly mentioning what it believed were
typical sentences for other 924(c) career offenders. A review of the court's
explanation at the hearing for selecting the sentence it did puts its statistical
observation in the appropriate context. After calculating the Guidelines range, the
court turned its attention to the sentencing considerations found in 18 U.S.C.
§ 3553(a) to determine whether a sentence within the Guidelines range would be
appropriate, and its discussion of those considerations covers about thirteen pages of
transcript. It began by noting "some extreme aggravating factors," such as the nature
and seriousness of Shell's offenses, his multiple, dangerous flights from law
enforcement, and especially his criminal history. The court discussed these
aggravating circumstances at length, even recounting aloud the circumstances
surrounding several of Shell's previous convictions. It observed that Shell was a
career offender in both the legal and ordinary sense of that phrase who had spent
adulthood "going through a revolving door of the criminal justice system," "either
committing crimes or being incarcerated for committing crimes."
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The court then proceeded to recite some circumstances it thought were
mitigating, such as Shell's difficult childhood, mental and physical health, remorse,
and his not brandishing or using a gun when fleeing from police. It was at this point
in the hearing that the court briefly mentioned the sentences of similarly situated
defendants and offered its view of the relevant statistics. But after making that
remark, the court abandoned its short detour and returned to the main subjects of its
reasoning—the aggravating and mitigating circumstances of the case. It said, "I can't
get over the relative seriousness, the aggravating aspects of the specific offenses of
conviction here" and Shell's significant criminal history. The court said that it could
not reconcile those considerations "with a sufficient justification to vary downward
from the guideline range." It added, "If anything, I could make a really good case for
imposing sentence at the upper end of the guideline range" but decided otherwise in
light of the mitigating circumstances. "So for those reasons," the court concluded, it
sentenced Shell to 262 months. The record therefore shows that the court fixed Shell's
sentence by focusing in a determined way on the aggravating and mitigating
circumstances of his case, not on the sentences that other 924(c) career offenders
received.
We note as well that, even if the court misapprehended nationwide sentencing
statistics, it determined from its own, court-specific records that it did not often
sentence ordinary career offenders below the Guidelines where they had "earned their
stripes as a career offender" as Shell had. After taking much time to review how Shell
was a "career offender" in every sense of that phrase, we do not think the court would
have treated Shell differently just because he was a 924(c) career offender.
We are therefore unconvinced that any error "substantially influence[d] the
outcome of the sentencing proceeding," see Woods, 670 F.3d at 886, and so we hold
that any procedural error was harmless.
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Shell also maintains that the same statistics he cites in support of his
procedural-error argument illustrate that his sentence is substantively unreasonable,
since it appears that most 924(c) career offenders in fiscal year 2019 actually did not
receive a sentence within the Guidelines range. We see no abuse of discretion here.
The district court carefully considered the relevant circumstances and concluded, with
a more than ample explanation, that a sentence at the bottom of the Guidelines range
was appropriate. We see no reason to think that Shell has overcome the presumption
that a Guidelines sentence is reasonable, see United States v. Coleman, 635 F.3d 380,
382 (8th Cir. 2011), as this is not the "unusual case" for which we will reverse a
sentence as substantively unreasonable. See United States v. Crumble, 965 F.3d 642,
646–47 (8th Cir. 2020).
Affirmed.
STRAS, Circuit Judge, concurring in the judgment.
I agree with the court that Shell is not entitled to relief, despite the district
court’s alleged misstatement at sentencing. The issue was never brought to the
district court’s attention, so we will reverse, if at all, only for plain error. See United
States v. Troyer, 677 F.3d 356, 358 (8th Cir. 2012).
In my view, any error could not have been plain “on th[is] record” because,
without knowing the source, time frame, or dataset used, it is next to impossible to
determine at this point whether the district court actually misstated anything. Id. at
359. And when an error is not “clear on the record,” we let the judgment stand. Id.
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