United States of America v. Shawn Michael Scherer

United States Court of Appeals
For the Eighth Circuit
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No. 23-2402
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United States of America
Plaintiff - Appellee
v.
Shawn Michael Scherer
Defendant - Appellant
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Appeal from United States District Court
for the District of North Dakota - Eastern
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Submitted: February 14, 2024
Filed: August 29, 2024
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Before SMITH, Chief Judge,1 BENTON and STRAS, Circuit Judges.
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SMITH, Chief Judge.
Shawn Scherer appeals his sentence upon the revocation of his supervised
release. We affirm.
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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I. Background
In 2011, Scherer was convicted of possessing a firearm as a felon. He was
sentenced to 120 months’ imprisonment and three years of supervised release. Two
days into his supervised-release term, he tested positive for methamphetamine. After
testing positive a second time, he absconded. The district court revoked his
supervised release in June 2020 and sentenced him to 10 months’ imprisonment and
3 years of supervised release.
Scherer began serving his second supervised-release term but again violated
its conditions, testing positive for methamphetamine and absconding from a reentry
center. In April 2021, the court revoked his supervised release and sentenced him to
14 months’ imprisonment and 24 months of supervised release.
Scherer began serving his third term of supervised release; once again, he
violated its conditions. He was terminated from an inpatient treatment program, was
terminated from a reentry center because of drug use, tested positive for
methamphetamine four times, failed to report to the probation office, and committed
state-law drug crimes. This conduct led to state charges for felony possession of drug
paraphernalia and misdemeanor possession of methamphetamine. Scherer was again
subject to federal revocation proceedings. He pleaded guilty to two state
misdemeanor charges while his revocation proceedings were pending.
At his revocation hearing, Scherer admitted to the above violations. The
government requested a sentence at the top of the Guidelines’ range, which was 8 to
14 months’ imprisonment. Scherer’s counsel spoke about Scherer’s completion of
numerous classes while incarcerated. The following exchange then took place
between the district court2 and Scherer’s counsel:
2 The Honorable Peter D. Welte, Chief Judge, United States District Court for
the District of North Dakota.

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[MS. GORHAM:] Additionally, while he was incarcerated my client
had the state charge that he was able to communicate with his attorney
and he was able to resolve that case, which sets him up for I think more
success once this case is concluded so that he can—
THE COURT: Ms. Gorham, I’m going to interrupt you and I mean no
disrespect, but we resolved that with a Rule 43.
MS. GORHAM: Yes.
THE COURT: He didn’t even have the inconvenience of appearing in
court on a felony.
MS. GORHAM: Yes.
THE COURT: So don’t gild the lil[]y on this one. You can skip over
that argument. I’m not buying what you’re selling.
MS. GORHAM: Your Honor, if I may respond?
THE COURT: You know what, I don’t want to hear it.
R. Doc. 207, at 19–20 (spacing altered). Scherer’s counsel then highlighted
Scherer’s volunteer work within the jail and his positive relationships with
corrections officers. Scherer’s counsel also requested a 14-month sentence.
The district court noted that over the course of three terms of supervised
release, Scherer had complied with the court’s conditions for, at best, a total of 17
days before committing violations. The court then sentenced Scherer to 36 months’
imprisonment and no supervised release. Scherer appeals.
II. Discussion
Scherer raises two challenges to his sentence. First, he argues that the district
court abused its discretion in prohibiting his counsel from describing the resolution
of his state charges as mitigation information for his federal sentencing. Second, he
argues that the court imposed a substantively unreasonable sentence.

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“We review the district court’s revocation sentencing decision under the same
deferential-abuse-of-discretion standard that applies to initial sentencing
proceedings.” United States v. Clark, 998 F.3d 363, 367 (8th Cir. 2021) (cleaned
up).
A. Limitation on Counsel’s Argument
Scherer argues that the district court abused its discretion in limiting his
counsel’s argument at the revocation hearing. Scherer acknowledges that Federal
Rule of Criminal Procedure 32.1(b)(2) “does not explicitly say that counsel has a
right to speak on the defendant’s behalf at a revocation sentencing.” Appellant’s Br.
at 10. But he argues that the right is implicit in “the right to counsel, the right to
allocution, or the complementary rights provided by Rule 32.” Id. (internal quotation
marks omitted).
We first consider whether any error was preserved. The government, relying
on United States v. Thurmond, 914 F.3d 612 (8th Cir. 2019), argues that Scherer did
not preserve his argument and so plain error review applies. We disagree. Federal
Rule of Criminal Procedure 51(b) states that “[a] party may preserve a claim of error
by informing the court—when the court ruling or order is made or sought—of the
action the party wishes the court to take, or the party’s objection to the court’s action
and the grounds for that objection.” In Thurmond, the defendant asked if he could
speak about a topic, the court said “[n]o,” and neither the defendant nor his counsel
objected. 914 F.3d at 614. We held that the defendant had not preserved an objection.
Id. By contrast, here, Scherer’s counsel began making an argument, and the district
court interrupted her. She then specifically requested permission to respond. The
court denied her the opportunity. The combination of defense counsel’s initial
attempt at argument and her later request for permission to respond to the court’s
limitation sufficiently informed the court of the action that Scherer wished the court
to take. Scherer’s counsel clearly sought to address potentially mitigating aspects of
the resolution of Scherer’s state charges. Cf. United States v. Camp, 410 F.3d 1042,
1044–45 (8th Cir. 2005) (declining to decide whether an issue was preserved but
noting that “the hallmarks of preserving an issue for appeal” were present when

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defense counsel questioned the court’s ruling and the court understood, responded,
and clearly indicated that it would not reconsider). Scherer thus preserved his
argument.
The Federal Rules of Criminal Procedure prescribe one set of procedures to
govern sentencing hearings generally and another set of procedures to govern
revocation hearings. See Fed. R. Crim. P. 32, 32.1. At an initial sentencing, Rule
32(i)(4)(A) applies and explicitly provides that “the court must[] (i) provide the
defendant’s attorney an opportunity to speak on the defendant’s behalf [and] (ii)
address the defendant personally in order to permit the defendant to speak or present
any information to mitigate the sentence.” (spacing altered) (emphasis added). At a
revocation hearing, “[a] person is entitled to . . . (D) notice of the person’s right to
retain counsel or to request that counsel be appointed if the person cannot obtain
counsel[] and (E) an opportunity to make a statement and present any information
in mitigation.” Fed. R. Crim. P. 32.1(b)(2)(D)–(E) (spacing altered). Thus, Rule
32(i)(4)(A) more explicitly provides for argument of counsel than does Rule
32.1(b)(2).
There is some question as to whether Rule 32’s procedures also apply to
revocation proceedings. We have held that
Rule 32 is not expressly limited to sentencing immediately following
conviction. . . . Rules 32 and 32.1 are complementing rather than
conflicting, and . . . Rule 32 applies to sentencing upon revocation of
supervised release when the court imposes a new sentence based on
conduct that occurred during supervised release.
United States v. Patterson, 128 F.3d 1259, 1261 (8th Cir. 1997) (per curiam)
(internal quotation marks omitted). But we decided Patterson prior to the
amendment to Rule 32.1 that explicitly gave defendants a right to personal
allocution. See Rule 32.1 advisory committee’s note to 2005 amendments. The
amendment did not identify a right to have counsel present argument. It is unclear
how many of Rule 32’s rights apply to defendants at revocation hearings now that

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Rule 32.1(b)(2)(E) provides a right to allocution. See United States v. Robertson,
537 F.3d 859, 862 (8th Cir. 2008) (noting that a prior decision had applied Patterson
to an appeal of a revocation sentence but that, in the case before the court, Rule
32.1(b)(2)(E) controlled allocution); United States v. Richey, 758 F.3d 999, 1002 n.3
(8th Cir. 2014) (“Does Patterson’s logic mean a revocation ‘sentence’ is ‘impose[d]’
within the meaning of Rule 32, such that an additional report must be prepared and
disclosed with an opportunity to object? We need not answer this difficult question
here, so we leave it open for a future case.”).
We need not decide today whether all of Rule 32(i)(4)(A) applies at
revocations. We assume that at least when, as here, the court allows the government
to present argument at sentencing, it must also give the defendant the opportunity to
present argument through counsel. We note, too, that “[i]t is well established that a
district court must generally consider the parties’ nonfrivolous arguments before it.”
Concepcion v. United States, 597 U.S. 481, 501 (2022).
This case does not require us to define the precise boundary where the
defendant’s right to have counsel argue on his behalf ends and the court’s power to
limit argument begins. Here, any error in limiting counsel’s statement about the
resolution of Scherer’s state charges was harmless. Under Federal Rule of Criminal
Procedure 52(a), “[a]ny error, defect, irregularity, or variance that does not affect
substantial rights must be disregarded.”3 Under harmless error review, the
government must “show that the district court’s procedural error did not
3 It is unclear whether harmless-error analysis applies when a defendant is
deprived of the right of personal allocution. See United States v. Griggs, 431 F.3d
1110, 1114 n.4 (8th Cir. 2005). But we hold that when, as here, the court limits the
defendant’s counsel’s argument and does not entirely forbid argument, Rule 52(a)
applies. See United States v. Henson, 550 F.3d 739, 741 (8th Cir. 2008) (“We see
nothing in [Gall v. United States, 552 U.S. 38 (2007),] that . . . makes harmless-error
analysis inapplicable to procedural sentencing errors.”).

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substantially influence the outcome of the sentencing proceeding.” Henson, 550 F.3d
at 741 (8th Cir. 2008).4
Scherer argues that his precluded argument would have shown “his clear,
recent ability to work with authority figures, maintain his composure, and navigate
the complexities of his personal and legal struggles in a more positive manner.”
Appellant’s Br. at 17. And Scherer points out that his plea to the state charges served
judicial economy, avoiding both transportation and paperwork. Scherer argues that
his counsel would have “explain[ed] that the efforts the system has put into Scherer
ha[ve] borne significant fruit” and that he is rehabilitating and “taking responsibility
for himself.” Reply Br. at 6. His counsel “would have argued that a prolonged period
of incarceration would be detrimental to” Scherer’s progress. Id. at 7.
Scherer did, in fact, present both arguments and evidence to demonstrate most
of these mitigating factors. At the hearing, defense counsel addressed Scherer’s work
while in jail and his participation in classes and programming. Scherer submitted
letters from jail personnel commenting on his positive work ethic and efforts to wax
floors and clean at the jail facility, including one letter stating that “Scherer has
shown the ability to take initiative, work very hard, be respectful, learn new things
and adjust to his environment and make the most of his time here.” R. Doc. 199-10,
at 2. Scherer also submitted documentation showing that he had participated in
individual therapy, completed group therapy programs, and completed 375 hours of
educational coursework. We think it highly unlikely that counsel’s statements
regarding Sherer’s guilty plea to state charges would have provided meaningful
additional impact to the evidence and argument already before the court.
4 The government does not argue in its brief that any error was harmless,
though it does argue that any error did not affect Scherer’s substantial rights. We
still consider whether any error was harmless, as “[w]e may always affirm on any
ground supported by the district court record.” United States v. Hansen, 944 F.3d
718, 724 n.3 (8th Cir. 2019).

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Furthermore, the district court did consider Scherer’s resolution of his state
charges. In Scherer’s sentencing memorandum supplement, Scherer discussed his
guilty plea to the state charges. In its ruling, the court noted that it had “considered
the entire record.” R. Doc. 207, at 28; see also United States v. Keating, 579 F.3d
891, 893 (8th Cir. 2009) (“[W]here the district court heard argument from counsel
about specific [18 U.S.C.] § 3553(a) factors, we may presume that the court
considered those factors.”). And it is reasonable to assume that the court understood
that Scherer’s plea to the state charges avoided the expenditure of state resources on
his prosecution.
Finally, nothing prevented Scherer’s counsel from arguing that a lengthy
sentence “would be detrimental to” Scherer’s progress. Reply Br. at 7.
Thus, any error in cutting off Scherer’s counsel’s argument “did not
substantially influence the outcome of the sentencing proceeding,” Henson, 550 F.3d
at 741, and so was harmless.
B. Substantive Reasonableness
Scherer also argues that his 36-month sentence is substantively unreasonable
considering his improvements while in custody. He points to his completion of
classes, participation in therapy, health challenges, work while in jail, and ability “to
work under authority figures” to show that his sentence is excessive. Appellant’s Br.
at 21.
Our review of a district court’s sentencing decision is deferential. Clark, 998
F.3d at 367 (affirming a 24-month sentence upon a second revocation). We have said
that
[a] sentence is substantively unreasonable if the district court fails to
consider a relevant factor that should have received significant weight,
gives significant weight to an improper or irrelevant factor, or considers
only the appropriate factors but commits a clear error of judgment in
weighing those factors. We afford the court wide latitude to weigh the

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§ 3553(a) factors in each case and assign some factors greater weight
than others in determining an appropriate sentence. . . . [I]t is an
unusual case when we reverse a district court sentence—whether
within, above, or below the applicable Guidelines range—as
substantively unreasonable.
Id. at 369 (internal quotation marks omitted). “[A] defendant’s disagreement with
the district court’s balancing of relevant considerations does not show that the court
abused its discretion.” United States v. Hogue, 66 F.4th 756, 766 (8th Cir. 2023)
(internal quotation marks omitted). Before imposing a sentence, the court must
consider most of the factors in § 3553(a), including “(1) the nature and
circumstances of the offense and the history and characteristics of the defendant”
and “(2) the need for the sentence imposed . . . to afford adequate deterrence to
criminal conduct.” 18 U.S.C. § 3553(a)(1), (a)(2)(B); see also id. § 3583(e)(3).
Here, the district court stated that it had considered “the entire record,” the
§ 3553(a) factors, and “the statements of counsel.” R. Doc. 207, at 28. The court
noted that over the course of three supervised-release terms, Scherer had complied
with his supervised-release conditions for only 17 days before violating them.
Addressing Scherer, the court said, “I think it’s very, very, very clear from the record
that supervision is not working for you and remaining law-abiding isn’t working for
you as well.” Id. The court weighed the relevant information differently than Scherer
would have hoped—placing more emphasis on Scherer’s record while on supervised
release and less emphasis on his more recent efforts at rehabilitation—but there was
no “clear error of judgment.” Clark, 998 F.3d at 369; see also Hogue, 66 F.4th at
766 (deferring to the district court’s weighing of the relevant factors). Scherer’s
sentence was substantively reasonable. See United States v. Rollins, 105 F.4th 1115
(8th Cir. 2024) (per curiam) (affirming a 40-month sentence upon a third revocation
of supervised release).

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III. Conclusion
On this record, any error in limiting defense counsel’s argument at sentencing
was harmless. And Scherer’s sentence is substantively reasonable. Therefore, we
affirm.
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