United States of America v. Nicholas D. Dismuke, also known as Nicolas, also known as Crucial Cujo

United States Court of Appeals
For the Eighth Circuit
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No. 21-3887
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Nicholas D. Dismuke, also known as Nicolas, also known as Crucial Cujo
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas - Central
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Submitted: December 12, 2022
Filed: December 27, 2022
[Unpublished]
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Before LOKEN, MELLOY, and KOBES, Circuit Judges.
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PER CURIAM.
Nicholas Dismuke pled guilty to being a felon in possession of a firearm and
brandishing a firearm in furtherance of a crime of violence. The district court1
1The Honorable James M. Moody, Jr., United States District Judge for the
Eastern District of Arkansas.

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imposed a within-guideline-range sentence of 46 months on the possession count and
a consecutive 180-month sentence on the brandishing count, a 96-month upward
variance. Dismuke appeals his 180-month sentence.
At sentencing, a mitigation specialist2 testified about mitigating biological,
sociological, and environmental factors in Dismuke’s background. In addition, a
licensed forensic and clinical psychologist provided a report and testified about
mitigating circumstances from a psychological perspective. The district court
concluded Dismuke was likely to re-offend based in part on the psychologist’s report.
Dismuke argues this finding was clearly erroneous and amounted to procedural error.
United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc). Dismuke
argues specifically that the report discussed factors from early in his life and spoke
about his likelihood to offend in the first instance rather than his likelihood to re-
offend.
Dismuke’s argument fails for two reasons. First, it is unclear whether the court
misinterpreted the report. Although the report was written in the past tense it did not
indicate how the factors that made Dismuke likely to offend in the past have changed.
The factors laid out in the report as making it likely Dismuke would offend still exist.
It was reasonable for the district court to view the report as indicating Dismuke was
likely to re-offend. Second, the report was only one of many factors the court
considered during sentencing. Even without the psychologist’s report, there was
ample evidence to conclude Dismuke was likely to re-offend. We find no procedural
error.
Dismuke also argues the sentence is unreasonable because the district court
ignored mitigating history and imposed a sentence greater than necessary to satisfy
2The mitigation specialist, Tricia Russell, also works as a capital conflicts
attorney with the Arkansas Public Defender Commission.
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the purposes set out in 18 U.S.C. § 3553(a)(2). We review the substantive
reasonableness of a sentence under a deferential abuse-of-discretion standard.
Feemster, 572 F.3d at 461. Here, the district court reviewed all the mitigating
evidence, did not weigh any improper factors, and committed no clear errors of
judgment. Id. Additionally, the district court made a specific finding that the
sentence imposed was necessary to satisfy the § 3553(a) factors. See United States
v. Parker, 762 F.3d 801, 812 (8th Cir. 2014) (“Where [a] district court in imposing
a sentence makes ‘an individualized assessment based on the facts presented,’
addressing the defendant’s proffered information in its consideration of the § 3553(a)
factors, such sentence is not unreasonable.”) (citation omitted).
We affirm the judgment of the district court.
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