United States of America v. David Twine

United States Court of Appeals
For the Eighth Circuit
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No. 22-1705
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
David Twine
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: February 13, 2023
Filed: April 28, 2023
[Published]
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Before LOKEN, COLLOTON, and BENTON, Circuit Judges.
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PER CURIAM.
On July 11, 2019, David Twine assaulted a 77-year-old St. Louis taxi driver,
stole his taxi, and drove it to Chicago. He pleaded guilty to transporting a stolen
vehicle and now appeals his 42-month sentence, an upward variance from his
advisory guidelines sentencing range of 15 to 21 months imprisonment. Twine

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argues the sentence is substantively unreasonable because the district court1 did not
properly account for Twine’s mental health issues and gave too much weight to the
fact that the offense occurred on the first day he was released on parole following a
2015 Illinois second-degree murder conviction. Reviewing the district court’s
sentencing decision for abuse of discretion, we affirm.
On the day in question, taxi driver E.G. picked up Twine at a bus stop in
St. Louis. E.G. drove Twine to various locations where he unsuccessfully attempted
to cash his bail refund check. After the last attempt, Twine returned to the taxi and
began punching E.G. in what bystanders described as a “vicious” assault. E.G.
opened the driver’s door, attempting to escape, but became entangled in the seatbelt
and fell partway out of the taxi. Twine moved into the driver’s seat and drove away
at high speed, dragging E.G. for about five feet before E.G. untangled himself and fell
to the ground. Fortunately, E.G. did not suffer serious injury, but responding officers
observed bleeding on his neck and bruises on his arms and legs. Law enforcement
found the stolen taxi in Chicago the next day.
Indicted for carjacking, see 18 U.S.C. § 2119, Twine pleaded guilty to the
lesser charge of transporting a stolen vehicle in violation of 18 U.S.C. § 2312. At
sentencing, the district court adopted Probation’s recommended guidelines range of
15 to 21 months imprisonment. Twine requested a within-range sentence, noting as
mitigating sentencing factors that he was a decorated military veteran and “on a bright
path” until diagnosed with schizophrenia and psychoticism in 2012, when “his life
started to fall apart.” While in Illinois prison for committing the second degree
murder, he did not receive needed mental health treatment.
1The Honorable John A. Ross, United States District Judge for the Eastern
District of Missouri.
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In its careful analysis of the 18 U.S.C. § 3553(a) sentencing factors, the district
court considered the mitigating impacts of Twine’s military service and serious
mental health issues. However, the court concluded, the Guidelines “just don’t reflect
the seriousness” of Twine’s assault of a 77-year-old taxi driver, and they “don’t
adequately reflect the prior conviction for murder [or] the fact that this occurred the
very day that you were released.” Further, noting that a within-range sentence would
result in a sentence close to time served,2 the district court stated it could not “in good
conscience say that Mr. Twine should get out at this point, or get out soon,” because
he is still “a significant danger to the community.” Based on these aggravating
factors, the district court varied upward and sentenced Twine to 42 months
imprisonment, significantly above the top of his advisory guidelines range.
We review the substantive reasonableness of Twine’s sentence under a
deferential abuse-of-discretion standard. United States v. Feemster, 572 F.3d 455,
461 (8th Cir. 2009) (en banc). “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.”
United States v. Hubbs, 18 F.4th 570, 572 (8th Cir. 2021) (quotation omitted).
The district court did not abuse its discretion by varying upward based in part
on Twine’s Illinois murder conviction and the fact that he committed this offense on
his first day of parole. “[A] court may consider a defendant’s criminal history even
if that history is included in the defendant’s criminal history category.” United States
v. Barrett, 552 F.3d 724, 727 (8th Cir. 2009). “[A]n upward variance may be
warranted where a defendant repeats his or her criminal conduct shortly after
2Twine was in federal custody for over thirteen months before sentencing and
also received credit for time served in a Missouri jail for the parallel state prosecution
that was later dismissed. See 18 U.S.C. § 3585(b).
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completing punishment for a previous offense.” United States v. David, 682 F.3d
1074, 1077 (8th Cir. 2012).
The record does not support Twine’s further argument that the district court
placed too little weight on the mitigating impact of his serious, untreated mental
health issues. The court expressed sympathy for Twine’s mental health condition,
criticized the failure to provide him mental health treatment while incarcerated in
Illinois, and noted that the federal Bureau of Prisons has resources to provide mental
health treatment in its facilities. But the court concluded that the circumstances and
timing of Twine’s vicious assault on E.G. demonstrated that he poses a significant
danger to the community and that a sentence close to time served would not
sufficiently protect the public. Twine argues that the federal prison system’s mental
health resources “cannot be the basis for extending a prison sentence” because they
are available to defendants on supervised release. The Supreme Court has held that
a sentencing court “may not impose or lengthen a prison sentence to enable an
offender to complete a treatment program or otherwise to promote rehabilitation.”
Tapia v. United States, 564 U.S. 319, 335 (2011). Here, the district court did not
lengthen Twine’s sentence to enable mental health treatment. It varied upward
because Twine is a significant danger to the community and the Guidelines do not
adequately account for the seriousness and circumstances of his offense. See United
States v. Michels, 49 F.4th 1146, 1149 (8th Cir. 2022); United States v. Clark, 998
F.3d 363, 368-69 (8th Cir. 2021).
The district court in varying upward did not abuse its substantial sentencing
discretion. The judgment of the district court is affirmed.
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