United States of America v. Brandon James Seys

United States Court of Appeals
For the Eighth Circuit
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No. 20-3720
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Brandon James Seys
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Eastern
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Submitted: September 24, 2021
Filed: March 1, 2022
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Before KELLY, ERICKSON, and GRASZ, Circuit Judges.
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GRASZ, Circuit Judge.
Brandon Seys pled guilty to one count of conspiring to distribute
methamphetamine in violation of 21 U.S.C. § 846, and one count of possessing a
firearm as a felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Seys was
sentenced to concurrent terms of 324 and 120 months of imprisonment. Seys appeals

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his conviction and sentence, arguing the district court1 erred by denying his motion
to withdraw his guilty plea, denying a reduction for his acceptance of responsibility
under the United States Sentencing Guidelines Manual (“U.S.S.G” or “Guidelines”)
§ 3E1.1, and imposing an unreasonable sentence. We affirm.
I. Background
Based on information from multiple sources, Dubuque Drug Task Force
(“DDTF”) officers suspected Seys was distributing methamphetamine in Dubuque,
Iowa. DDTF officers began conducting 24-hour video surveillance on Seys’s
presumed residence, and used mobile-tracking devices on two vehicles connected to
Seys. While observing Seys’s actions, DDTF officers witnessed him regularly visit
a storage unit that they believed contained drugs, and they learned Seys frequented
a local hotel.
In December 2018, DDTF officers searched the house, one of the cars, the
storage unit, a hotel room, and Seys himself. They found methamphetamine,
cocaine, and other evidence consistent with drug distribution—drug paraphernalia,
surveillance cameras, firearms, ammunition, notebooks containing suspected drug
ledgers, and about $10,000 in cash.
DDTF officers arrested Seys and a grand jury charged him with five crimes:
(1) conspiracy to distribute methamphetamine, 21 U.S.C. § 846; (2) possession of
firearms during and in relation to a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A);
(3) possession of firearms by a felon, 18 U.S.C §§ 922(g)(1) and 924(a)(2); (4)
possession with intent to distribute methamphetamine, 21 U.S.C. § 841(a)(1),
(b)(1)(B), and (b)(1)(B); and (5) possession with intent to distribute cocaine, 21
U.S.C. § 841(a)(1), (b)(1)(C).
1 The Honorable C.J. Williams, United States District Judge for the Northern
District of Iowa, adopting the report and recommendations of the Honorable Mark
A. Roberts, United States Magistrate Judge for the Northern District of Iowa.

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Seys moved to dismiss his indictment. He argued dismissal of the indictment
was warranted because the government violated his due process rights by failing to
preserve surveillance video of his house. See Brady v. Maryland, 373 U.S. 83, 87
(1963) (holding it violates due process for the government to suppress requested
material evidence that is favorable to the accused, regardless of whether the
government acted in good or bad faith); Arizona v. Youngblood, 488 U.S. 51, 58
(1988) (“We therefore hold that unless a criminal defendant can show bad faith on
the part of the police, failure to preserve potentially useful evidence does not
constitute a denial of due process of law.”). After a hearing, the district court denied
Seys’s motion to dismiss the indictment. The district court rejected Seys’s due
process argument after concluding Seys failed to show that the missing surveillance
video was exculpatory or that law enforcement’s unintentional destruction of the
video was done in bad faith.
At that point Seys sought to enter a guilty plea. After a hearing, the district
court accepted Seys’s guilty plea to the conspiracy distribution and the felon in
possession counts after finding the guilty plea was knowing and voluntary and had
a factual basis.
Roughly seven months later, Seys moved to withdraw his guilty plea after he
received some surveillance video the government had previously claimed was
mistakenly not saved. Seys argued this development provided a fair and just reason
to withdraw his guilty plea, arguing that it revealed DDTF Investigator Daniel
Kearney, who was heavily involved in the investigation and surveillance of Seys’s
house, had testified falsely at the motion to dismiss hearing and that this new
information bolstered his previously-rejected due process argument.
After another evidentiary hearing, the district court rejected Seys’s argument,
reiterating Seys had not shown the surveillance video was exculpatory and the
evidence showed, at most, Kearney had negligently handled the video. The district
court concluded this did not constitute bad faith, and thus a due process violation
had not occurred. While acknowledging that Seys believed this information might

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give him an opportunity to impeach Kearney, the district court nonetheless did not
find this possibility of impeachment was a fair and just reason to allow Seys to
withdraw his guilty plea. Consequently, the district court denied Seys’s motion.2
The case proceeded to sentencing. When calculating the advisory Guidelines
range, the district court rejected a two-level reduction in Seys’s total offense level
based on his acceptance of responsibility. The district court imposed a sentence of
324 months for the conspiracy crime, which was at the bottom of the recommended
Guidelines range, and 120 months for the possession of firearms by a felon crime,
with the terms to be served concurrently.
II. Analysis
On appeal, Seys argues the district court erred by denying his motion to
withdraw his guilty plea, denying a reduction for acceptance of responsibility, and
imposing an unreasonable sentence. We consider each argument in turn.
A. Attempt to Withdraw Guilty Plea
We first consider Seys’s argument that the district court should have granted
his motion to withdraw his guilty plea, applying an abuse of discretion standard. See
United States v. Trevino, 829 F.3d 668, 671 (8th Cir. 2016).
2 The district court recognized it did not need to consider the remaining factors
related to a motion to withdraw a guilty plea because of its fair and just reason
determination. But it believed such an analysis was warranted. The district court
found Seys did not make a meaningful assertion of factual or legal innocence. The
district court also found that too much time had passed between Seys’s guilty plea
and his motion to withdraw it and thus “the timeliness factor . . . [did] not support
granting [Seys’s] motion.” Finally, the district court found the government would
not be significantly prejudiced by permitting Seys to withdraw his guilty plea but
concluded this factor did not outweigh Seys’s failure to prevail on the other factors.

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The Federal Rules of Criminal Procedure permit a defendant to withdraw a
court-accepted guilty plea before sentencing if “the defendant can show a fair and
just reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). “Even if
such a fair and just reason exists, before granting the motion a court must consider
‘whether the defendant asserts his innocence of the charge, the length of time
between the guilty plea and the motion to withdraw it, and whether the government
will be prejudiced if the court grants the motion.’” United States v. Ramirez-
Hernandez, 449 F.3d 824, 826 (8th Cir. 2006) (quoting United States v. Nichols, 986
F.2d 1199, 1201 (8th Cir. 1993)). The district court need not weigh these other
considerations, however, where the defendant shows no fair and just reason for the
withdrawal. Nichols, 986 F.2d at 1201.
The threshold issue here is whether the district court abused its discretion in
deciding Seys did not show a fair and just reason to withdraw his guilty plea. It did
not.
The district court found “unpersuasive” Seys’s contention that DDTF’s
handling of the surveillance video amounted to a due process violation, thus
warranting a withdrawal of the guilty plea. “Due process is violated when the
government ‘suppresses or fails to disclose material exculpatory evidence.’” United
States v. Houston, 548 F.3d 1151, 1155 (8th Cir. 2008) (quoting Illinois v. Fisher,
540 U.S. 544, 547 (2004)). “If, however, the evidence in question is only potentially
useful, as opposed to clearly exculpatory, then a criminal defendant must prove bad
faith on the part of the police to make out a due process violation.” Id.
Seys admits the missing surveillance video is only potentially useful and thus
he needed to show Kearney acted in bad faith to prevail on his due process claim.
After two hearings where Kearney and other law enforcement officials testified
about their handling of the surveillance video, the district court concluded the law
enforcement agents’ actions fell “far short of the type of behavior which could
plausibly be considered to be bad faith.” The district court explained there was no
evidence Kearney intentionally destroyed files, consciously suppressed exculpatory

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evidence, or otherwise tried to circumvent disclosure requirements. And the district
court rejected Seys’s position that Kearney acted in bad faith, reasoning this
speculation was based on “unreasonable” inferences and “an overly literal parsing
of . . . Kearney’s testimony and assumptions about what law enforcement agents
from different but related agencies should know throughout the course of a
prolonged investigation.” Our review of the record convinces us there is no basis to
disturb the district court’s determination.
Without a potentially meritorious due process claim, the only other allegedly
fair and just reason Seys advanced for withdrawing his guilty plea was his desire to
use Kearney’s purportedly inconsistent explanations regarding the video to impeach
him at trial. Applying our precedent, the district court decided this was not a fair
and just reason for Seys to withdraw his guilty plea. See Nichols, 986 F.2d at 1201–
02 (holding new evidence that “at best” was “only a source of impeachment
material” did “not constitute a sufficient reason” to permit the defendant to withdraw
his guilty plea); United States v. Morrison, 967 F.2d 264, 269–70 (8th Cir. 1992)
(affirming the district court’s decision to deny a motion to withdraw a guilty plea
when the “purported new evidence was . . . only weak impeachment evidence”).
Under these facts, we agree with the district court’s assessment.
Because Seys did not establish a fair and just reason to withdraw his guilty
plea, we hold the district court did not abuse its discretion by denying his motion.
B. Sentencing Issues
We next consider Seys’s sentence, which he attacks in two ways. First, he
argues the district court clearly erred in denying a Guidelines reduction for
acceptance of responsibility. He also argues his 324-month sentence of
imprisonment is substantively unreasonable. Neither argument prevails.
The Guidelines instruct sentencing courts to decrease a defendant’s offense
level by two levels when “the defendant clearly demonstrates acceptance of

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responsibility for his offense[.]” U.S.S.G. § 3E1.1(a). “It is the defendant’s burden
to prove his entitlement to the reduction.” United States v. Cooper, 998 F.3d 806,
810 (8th Cir. 2021). The Application Notes to § 3E1.1 explain that “[a] defendant
who falsely denies, or frivolously contests relevant conduct that the court determines
to be true has acted in a manner inconsistent with acceptance of responsibility[.]”
U.S.S.G. § 3E1.1 cmt. n.1(A).
We review the district court’s denial of the acceptance of responsibility
reduction for clear error. See United States v. Walker, 688 F.3d 416, 426 (8th Cir.
2012). “We afford ‘great deference’ to the sentencing judge’s determination of
whether to grant the reduction because of the judge’s ‘unique position to evaluate a
defendant’s acceptance of responsibility.’” Cooper, 998 F.3d at 810 (quoting United
States v. Davis, 875 F.3d 869, 875 (8th Cir. 2017)).
Here, the district court denied the acceptance-of-responsibility reduction
primarily because Seys made “frivolous objections” related to the quantity of drugs
attributed to him at his sentencing. The district court explained that while Seys had
the right to contest the drug quantities and hold the government to its burden, his
claims that he did not participate in drug transactions with certain individuals were
frivolous considering the record. Seys fails to show on appeal that this finding was
clearly erroneous. Thus, we conclude the district court did not procedurally err by
denying the reduction.
This leaves only Seys’s challenge to the substantive reasonableness of his
sentence, which we review for an abuse of discretion. See United States v. Wilcox,
666 F.3d 1154, 1156 (8th Cir. 2012). A sentencing court abuses its discretion when
it “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.”
Id. at 1156–57 (quoting United States v. Bryant, 606 F.3d 912, 921 (8th Cir. 2010)).
“Under this standard, our review is ‘narrow and deferential.’” United States v.

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Harrell, 982 F.3d 1137, 1141 (8th Cir. 2020) (quoting United States v. Feemster,
572 F.3d 455, 464 (8th Cir. 2009) (en banc)).
Seys argued the district court should have varied below the Guidelines range.
He claims this was warranted based on his “difficult childhood upbringing, untreated
mental health issues, and . . . the over-severity of sentences in actual (pure)
methamphetamine cases and the disparity between the actual (pure)
methamphetamine and methamphetamine mixture guidelines[.]”
We give district courts wide latitude in weighing the relevant factors when
imposing a sentence. See Wilcox, 666 F.3d at 1157. A district court’s decision to
“give some factors less weight than a defendant prefers or more to other factors . . .
alone does not justify reversal.” Id. (quoting United States v. Anderson, 618 F.3d
873, 883 (8th Cir. 2010)). “After all, the sentencing judge is in the best position to
find facts and judge their import under [18 U.S.C.] § 3553(a) in the individual case.”
Id. at 1157–58 (cleaned up) (quoting same).
Here, the district court thoroughly explained its consideration of the § 3553(a)
factors, discussing Seys’s offense conduct, his age, his mental health, his frequent
run-ins with law enforcement, his lack of legitimate income, his drug and alcohol
abuse, his difficult childhood, and his approximately fifteen prior criminal
convictions. Under these circumstances articulated by the district court, we
conclude the bottom-of-the-Guidelines sentence of 324 months is not substantively
unreasonable.
Finally, we reject Seys’s argument that the district court abused its discretion
when it stated Seys’s two siblings “grew up apparently in the same” difficult
environment as he did and yet had “not been involved in committing crimes.” Seys
claims this statement was speculative because the record is “not clear” whether the
siblings grew up in the same circumstances or “had a criminal history.”

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Because there was no objection, we review this argument under a plain error
standard, which among other elements requires Seys to show “the purported error
affected his substantial rights.” Harrell, 982 F.3d at 1140. “To do so, [Seys] must
show ‘a reasonable probability that but for the error he would have received a more
favorable sentence.’” Id. (quoting United States v. Bonnell, 932 F.3d 1080, 1083
(8th Cir. 2019)). “When a district court relies on speculation or facts not in the
record, we consider whether such reliance was a ‘principal basis’ for the sentence.”
Id. (quoting United States v. Durr, 875 F.3d 419, 421 (8th Cir. 2017)). Given the
district court’s thorough analysis of the § 3553(a) factors, we are not convinced the
district court’s statements about the siblings—even if they were speculative or
unsupported—formed a principal basis for the sentence. With no reasonable
probability that but for the alleged error Seys’s sentence would have been lower, his
argument fails.
III. Conclusion
We affirm the district court’s judgment.
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