United States of America v. Stuart Cole Mitchell

United States Court of Appeals
For the Eighth Circuit
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No. 19-2126
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Stuart Cole Mitchell
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
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Submitted: January 13, 2020
Filed: March 25, 2020
[Unpublished]
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Before BENTON, GRASZ, and STRAS, Circuit Judges.
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PER CURIAM.
In 2009, Stuart Cole Mitchell pled guilty to attempted receipt of child
pornography in violation of 18 U.S.C. § 2252(a)(2). The district court1 sentenced him
1The Honorable Brian S. Miller, United States District Judge for the Eastern
District of Arkansas.

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to 63 months of imprisonment, followed by five years of supervised release. The
original term of supervised release began in February 2014, but was revoked on four
different occasions for violations of the conditions of release. Two of the first three
revocations were followed by short periods of incarceration and further supervised
release. After the fourth revocation, Mitchell was sentenced to three months of home
detention, to be followed by the remaining term of supervised release. However, days
later, Mitchell violated his supervised release for the fifth time, this time for
possessing sexually explicit photographs on his cell phone.
In May 2019, the government filed a motion to revoke Mitchell’s supervised
release based on the sexually explicit photographs on his phone, his failure to report
to his probation officer, his failure to comply with his approved location monitoring
schedule, and his failure to attend sex offender treatment. Mitchell’s recommended
sentence under the United States Sentencing Guidelines Manual (“Guidelines”) was
from three to nine months of incarceration, but 18 U.S.C. § 3583(e)(3) authorized up
to two years of incarceration. The government recommended Mitchell be sentenced
to the statutory maximum of two years of imprisonment with no further supervised
release, given Mitchell’s continuous supervised-release struggles and failure to
meaningfully engage with the treatment offered.
During the revocation proceedings, the district judge noted that the underlying
case was for child pornography, acknowledged that Mitchell’s supervised release was
revoked four times previously, and then concluded that the statutory maximum
sentence without any further supervision would be most appropriate “to afford
adequate deterrence to his conduct and promote respect for the law.” On appeal,
Mitchell argues the district court’s two-year sentence was procedurally and
substantively unreasonable.
We review “a sentence imposed upon revocation of supervised release . . . for
an abuse of discretion.” United States v. White, 840 F.3d 550, 554 (8th Cir. 2016).
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This is “the same ‘deferential abuse-of-discretion’ standard that applies to initial
sentencing proceedings.” Id. at 552 (quoting United States v. Young, 640 F.3d 846,
848 (8th Cir. 2011)).
On appeal, Mitchell argues his sentence is procedurally unreasonable because
the district court did not consider all relevant 18 U.S.C. § 3553(a) factors, as required
by 18 U.S.C. § 3583(e). Specifically, Mitchell asserts the district court failed to
consider “the need to avoid unwarranted sentencing disparities” in § 3553(a)(6).
However, the district court need not “mechanically list every § 3553(a) consideration
when sentencing a defendant upon revocation of supervised release.” United States
v. Thunder, 553 F.3d 605, 608 (8th Cir. 2009) (quoting United States v. White Face,
383 F.3d 733, 740 (8th Cir. 2004)). It is permissible to “give some factors less weight
than a defendant prefers or more [weight] to other factors [and] that alone does not
justify reversal.” United States v. Anderson, 618 F.3d 873, 883 (8th Cir. 2010).
Here, the district court properly considered Mitchell’s history and
characteristics, the nature and circumstances of the offense, the need for an adequate
sentence to deter future conduct, and the applicable Guidelines range. And, although
the district court did not specifically discuss unwarranted sentencing disparities, it
clearly considered and weighed the sentencing factors and chose to give some factors,
like § 3553(a)(6), less weight than others. Such a decision is within the district
court’s “wide latitude to weigh the § 3553(a) factors in each case and assign some
factors greater weight than others in determining the appropriate sentence.” United
States v. Bridges, 569 F.3d 374, 379 (8th Cir. 2009). Therefore, the district court did
not abuse its discretion and the sentence was procedurally reasonable.
Similarly, Mitchell argues his sentence is substantively unreasonable because
the district court specifically considered whether his sentence would help to promote
respect for the law under 18 U.S.C. § 3553(a)(2)(A), a factor excluded from the list
of appropriate factors to consider for revocation under 18 U.S.C. § 3583(e).
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“However, on abuse of discretion review for substantive reasonableness, we examine
for whether the district court ‘g[ave] significant weight to an improper or irrelevant
factor.’” United States v. Hall, 931 F.3d 694, 697 (8th Cir. 2019) (alteration in
original) (quoting United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en
banc)). Here, like in Hall, the district court discussed, in support of its sentence, the
nature and circumstances of the offense, looked at Mitchell’s criminal history,
explained the need to adequately deter Mitchell’s future conduct — all proper factors
for consideration of revocation — and then also mentioned promoting respect for the
law. The district court’s decision here is an instance of “using an excluded factor as
an insignificant justification” resulting in “no substantive error” and therefore no
abuse of discretion. Id.
Because we find no error, procedural or substantive, in the district court’s
revocation sentence, we affirm.
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