United States of America v. Jordan Cutler

United States Court of Appeals
For the Eighth Circuit
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No. 22-3589
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United States of America
Plaintiff - Appellee
v.
Jordan Cutler
Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas - Central
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Submitted: September 18, 2023
Filed: December 6, 2023
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Before COLLOTON, GRASZ, and KOBES, Circuit Judges.
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KOBES, Circuit Judge.
Jordan Cutler pleaded guilty to distributing child pornography, 18 U.S.C.
§ 2252(a)(2). The district court1 varied up from a Guidelines range of 108 to 135
months and sentenced him to 180 months in prison. Cutler argues that the court
1 The Honorable Brian S. Miller, United States District Judge for the Eastern
District of Arkansas.

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procedurally erred in calculating the Guidelines range and that his sentence is
substantively unreasonable. We affirm.
I.
Cutler says that the district court erred by assessing one criminal history point
under U.S.S.G. § 4A1.1(c) for a set of uncounseled Arkansas misdemeanors from
2010. See United States v. Luscombe, 950 F.3d 1021, 1031 (8th Cir. 2020)
(“[Significant procedural] errors include . . . incorrectly calculating[] the Guidelines
range . . . .”). “In reviewing a sentence for significant procedural error, we review
the district court’s factual findings for clear error and application of the Guidelines
de novo.” Id. (cleaned up) (citation omitted). And “we may affirm on any ground
supported by the record.” United States v. Garrido, 995 F.2d 808, 813 (8th Cir.
1993).
The 2010 misdemeanors included one count of criminal trespass, two counts
of criminal mischief, and one count of theft of property. Cutler was ordered to pay
fines and costs for each count, and he received a 30-day suspended prison sentence.2
Cutler testified that he never received counsel and never waived his right to it.
Though the district court believed him, it still gave him the point. That point made
the difference between a criminal history category of I and II, raising his Guidelines
range from 97–121 months to 108–135 months.
The Sixth Amendment guarantees a misdemeanor defendant’s right to counsel
where he receives a suspended prison sentence. Alabama v. Shelton, 535 U.S. 654,
662, 674 (2002). All agree on appeal that Cutler had this right, did not waive it, and
was not represented. But the parties disagree about the consequences of the
2 The parties clash over whether the suspended sentence was void under
Arkansas law and which counts it applied to. The district court questioned the
accuracy of the city court docket, so we are reluctant to look to it for guidance.
Because neither issue affects our analysis, we adopt Cutler’s view that the suspended
sentence did not violate state law and that it applied to all counts.

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constitutional deprivation. Cutler says that it tainted the convictions, so the court
could not use any of them to assess a criminal history point. The Government argues
that it only invalidated the unconstitutional sentence; the convictions with associated
fines survive and support a criminal history point.
Our precedent is clear: the constitutional deprivation invalidates only Cutler’s
suspended prison sentence. United States v. White, 529 F.2d 1390, 1394 (8th Cir.
1976) (vacating invalid suspended prison sentence for an uncounseled misdemeanor
but affirming the conviction with associated fines). The 2010 misdemeanor
convictions remain intact with the associated fines. Cf. Scott v. Illinois, 440 U.S.
367, 373–74 (1979) (holding a penalty of fines with no prison term imposed for an
uncounseled misdemeanor does not implicate the Sixth Amendment right to
counsel). And uncounseled misdemeanor convictions with fines, “valid under Scott
because no prison term was imposed, [are] also valid when used to enhance
punishment at a subsequent conviction.” Nichols v. United States, 511 U.S. 738,
748–49 (1994).
Although the district court could not consider Cutler’s invalid suspended
prison sentence in its criminal history calculation, it could consider the
constitutionally valid fines that he received for his criminal mischief and theft of
property convictions.3 See United States v. Long, No. 97-1440, 1997 WL 375191,
at *1 (8th Cir. July 9, 1997) (per curiam) (assuming without deciding that
misdemeanor defendant’s conviction resulting in a suspended prison sentence was
uncounseled and concluding that his “probationary sentence and monetary fine
provided a basis for assessing the criminal history point”); United States v. Acuna-
3 Standing alone, the district court could not assess a point for Cutler’s criminal
trespass fine. See U.S.S.G. § 4A1.2(c)(1) (requiring a term of imprisonment of 30
days or more to assess a criminal history point for misdemeanor trespass). But in
the same prosecution, Cutler was convicted of and sentenced to pay fines for
misdemeanor criminal mischief and theft. And he does not argue that anything in
§ 4A1.2(c) would preclude the district court from assessing one criminal history
point for these remaining sentences.

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Reyna, 677 F.3d 1282, 1285 (11th Cir. 2012) (affirming use of “constitutionally
valid portion of a sentence” in calculating criminal history); United States v.
Jackson, 493 F.3d 1179, 1183 (10th Cir. 2007) (Gorsuch, J.) (same); United States
v. Ortega, 94 F.3d 764, 769 (2d Cir. 1996) (same). These sentences support the
district court’s one-point assessment for Cutler’s 2010 misdemeanors, so we find no
procedural error.
II.
Cutler also challenges the substantive reasonableness of his above-Guidelines
sentence, which we review under a “deferential abuse-of-discretion standard.”
United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (citation
omitted). A district court abuses its discretion if 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 appropriate factors but nevertheless commits
a clear error of judgment by arriving at a sentence that lies outside the limited range
of choice dictated by the facts of the case.” United States v. Fiorito, 640 F.3d 338,
352 (8th Cir. 2011) (citation omitted). It is “the unusual case when we reverse a
district court sentence—whether within, above, or below the applicable Guidelines
range—as substantively unreasonable.” Feemster, 572 F.3d at 464.
Cutler argues that the district court abused its discretion by focusing on
offense conduct that the Guidelines already captured in his offense characteristic
enhancements. See U.S.S.G. § 2G2.1(b). But the court found that the Guidelines
did not reflect the “heinous” nature of Cutler’s offense. They did not capture
Cutler’s threats to kidnap, rape, torture, and kill young girls—including a five-year-
old. Nor did they show that he conditioned those threats on his victims documenting
sex acts on themselves and other minors. Cutler’s sentencing enhancements told a
story, just not the whole one. The court was free to consider the whole story in
weighing the § 3553(a) factors and varying up. See Fiorito, 640 F.3d at 352 (“[A]
district court may impose an upward variance based on facts already included in the

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advisory sentencing guidelines where the advisory guidelines do not fully account
for those facts.”).
Cutler also says that the district court abused its discretion by considering its
reputation and public perception, which he says is an improper factor. The court
posed a hypothetical: “If I’m sitting in the barber shop talking to the fellows, and I
tell them somebody went into Court and here’s all of the stuff he did and he got ten
years, what would the average guy sitting on the park bench in the barbershop say?
They would say, there is no justice in this world.” Cutler claims that this comment
shows that the court succumbed to “peer pressure” when it varied up. We don’t
think so. The court was wrestling with “the need for the sentence imposed . . . to
reflect the seriousness of the offense, to promote respect for the law, and to provide
just punishment for the offense.” 18 U.S.C. § 3553(a)(2)(A). It found that no one—
not the court, the public (that “average guy” in the barbershop), nor even Cutler—
would find the Guidelines reasonable in this case. This was not an abuse of
discretion.
III.
The district court’s judgment is affirmed.
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