United States of America v. Theodore Stevie Varner

United States Court of Appeals
For the Eighth Circuit
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No. 23-2670
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United States of America
Plaintiff - Appellee
v.
Theodore Stevie Varner
Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota
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Submitted: January 8, 2024
Filed: June 27, 2024
[Unpublished]
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Before SMITH, Chief Judge,1 GRUENDER and SHEPHERD, Circuit Judges.
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PER CURIAM.
1 Judge Smith completed his term as chief judge of the circuit on March 10,
2024. See 28 U.S.C. § 45(a)(3)(A).

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Theodore Varner appeals his sentence of 18 months’ imprisonment for
violating his supervised release conditions. We hold that the district court2 did not
abuse its discretion and affirm the court’s judgment.
I. Background
In 2010, police officers arrested Varner while he was in possession of a pistol.
Due to Varner’s prior felony convictions, the government charged him with being a
felon in possession of a firearm under 18 U.S.C. § 922(g)(1). The indictment also
alleged that he was an armed career criminal under 18 U.S.C. § 924(e)(1). A jury
convicted him, and the district court sentenced him to 235 months’ imprisonment
with five years of supervised release. We affirmed his conviction and sentence.
United States v. Varner, 678 F.3d 653, 659 (8th Cir. 2012).
In 2021, Varner and the government filed a joint motion for compassionate
release. The parties agreed that Varner’s medical conditions increased his risk of
serious complications should he contract COVID-19. The district court granted the
motion and reduced Varner’s sentence to time served. Varner then began his five-
year supervised release term in February 2021. The U.S. Probation Office in the
Southern District of Texas agreed to courtesy supervision.
While under supervision, Varner struggled to follow his supervised release
conditions. First, Varner was charged with misdemeanor family assault in Harris
County, Texas. Texas did not convict Varner, and the District of Minnesota deferred
action on his supervised release revocation. Second, Varner did not keep his
probation officer apprised of his address, and the officer was unable to verify it
despite multiple attempts to do so. Third, Varner twice tested positive for illegal
drugs in December 2022.
2 The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.

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Due to these violations, his probation officer requested an arrest warrant. The
District of Minnesota issued the warrant, and Varner was taken into custody. At his
revocation hearing, the district court sentenced Varner to time served despite the
Guidelines range being 8 to 14 months’ imprisonment. The Southern District of
Texas also revoked Varner’s supervised release and transferred supervision back to
the District of Minnesota.
A month after the revocation hearing, Varner’s probation officer again
requested an arrest warrant. This time, Varner failed to report for two scheduled drug
tests. This violation resulted in his discharge from an outpatient treatment program.
The District of Minnesota again issued an arrest warrant. After the court issued the
warrant, Varner was arrested in Houston, Texas, for the felony offense of driving a
stolen vehicle. Varner pleaded guilty, and Texas imprisoned him for nine days and
then released him into federal custody.
The District of Minnesota held a revocation of supervised release hearing. At
the hearing, the government asked for a term of imprisonment. Varner requested a
sentence of time served. Although Varner acknowledged that he violated the terms
of his release when he left Minnesota without permission, he argued that his actions
were excusable because he traveled to Texas to retrieve his belongings. He also
contended that his overservice of prison time for his 2011 conviction supported his
request for a sentence of time served. Both parties acknowledged that if Varner had
been sentenced after our decision in United States v. Owen, his two third-degree
cocaine sale convictions would not have been “serious drug offense[s]” under 18
U.S.C. § 924(e)(1). See 51 F.4th 292 (8th Cir. 2022) (per curiam), reh’g by panel
denied, No. 21-3870, 2022 WL 17840559 (8th Cir. Dec. 22, 2022). Thus, post-
Owen, Varner would have served a maximum of 120 months.3 The Guidelines range
was 21 to 27 months’ imprisonment, and the district court sentenced Varner to 18
months’ imprisonment with no supervised release to follow.
3 Varner served approximately 125 months in prison before his compassionate
release.

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II. Discussion
Varner’s only argument on appeal is that the district court’s below-Guidelines
sentence of 18 months’ imprisonment was unreasonable and greater than necessary
under 18 U.S.C. § 3553. “We review the reasonableness of a revocation sentence
under the same deferential abuse-of-discretion standard that applies to initial
sentencing proceedings.” United States v. Elbert, 20 F.4th 413, 416 (8th Cir. 2021).
A district court abuses its discretion and imposes a substantively
unreasonable sentence when it (1) fails to consider a relevant factor that
should have received significant weight; (2) gives significant weight to
an improper or irrelevant factor; or (3) considers only the appropriate
factors but in weighing those factors commits a clear error of judgment.
United States v. Davis, 20 F.4th 1217, 1220 (8th Cir. 2021) (internal quotation marks
omitted). “[A] sentence below or within the Guidelines range is presumptively
reasonable on appeal.” United States v. Barraza, 982 F.3d 1106, 1116 (8th Cir. 2020)
(alternation in original) (quoting United States v. Canania, 532 F.3d 764, 773 (8th
Cir. 2008)).
Varner argues that the district court should have given more weight to his
overservice of prison time for his 2011 conviction. He also argues that the district
court did not adequately consider other mitigating factors when it sentenced him.
To support both arguments, Varner relies on the Supreme Court’s decision in
United States v. Johnson, 529 U.S. 53 (2000). There, the Supreme Court said that
“equitable considerations of great weight exist when an individual is incarcerated
beyond the proper expiration of his prison term” and then seeks modification of his
supervised release. Id. at 60. However, the key difference between Johnson and
Varner’s case is that Varner is not requesting a modification to his term of supervised
release. Instead, he is being sentenced for violating the terms of his supervised
release. Thus, Varner’s reliance on is Johnson misplaced. See United States v. Webb,
724 F. App’x 272, 273 (4th Cir. 2018) (unpublished per curiam) (“[The defendant]
repeatedly violated the conditions of his supervised release and then sought

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exoneration based on Johnson. We find that such reliance is misplaced. Johnson did
not provide a basis for violating supervised release with impunity, but instead merely
stated that overservice of a sentence should be considered when balancing the
equities during a determination of whether supervised release should be modified or
terminated early.”).
Moreover, we cannot say that the district court failed to give due weight to
Varner’s overserved time. We leave it to district courts to decide how much weight
to give a defendant’s overserved time during a revocation hearing for a supervised
release violation. See United States v. Childs, 17 F.4th 790, 793 (8th Cir. 2021)
(holding that a district court did not abuse its “broad discretion” when it imprisoned
a defendant, who overserved time, for violating his supervised release conditions.
(internal quotation marks omitted)). Here, the district court varied downward from
the Guidelines when Varner, just a few weeks after the first revocation hearing when
the district court imposed a sentence of time served, again violated terms of his
supervised release. It may well be that the district court’s below-Guidelines sentence
factored in Varner’s overserved time. But at any rate, the resulting sentence was not
an abuse of discretion.
Finally, the district court adequately considered Varner’s mitigating factors.
During the revocation hearing, Varner argued that he left Minnesota without
permission because he needed to retrieve his belongings in Texas. The district court
found that argument unpersuasive because Varner “picked up a new offense while
he was down there.” R. Doc. 185, at 12. The record shows that the district court
adequately considered Varner’s mitigating factors.
III. Conclusion
The district court’s imposition of a below-Guidelines sentence for Varner’s
supervised release violation was not an abuse of discretion. We affirm.
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