United States of America v. Kyle Edward McGhghy

United States Court of Appeals
For the Eighth Circuit
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No. 19-3460
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Kyle Edward McGhghy
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Des Moines
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Submitted: September 21, 2020
Filed: January 7, 2021
[Unpublished]
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Before LOKEN, SHEPHERD, and ERICKSON, Circuit Judges.
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PER CURIAM.
Kyle McGhghy pled guilty to possession of a firearm by a prohibited person
in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2) and was sentenced to 48 months’
imprisonment. McGhghy appeals, alleging the district court1 procedurally erred at
1The Honorable Stephanie M. Rose, United States District Judge for the
Southern District of Iowa.

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sentencing and, as a result, imposed a substantively unreasonable sentence. We find
no error, procedural or substantive.
On December 9, 2018, McGhghy and several friends, including Anthony
Taylor, gathered to watch a football game in a friend’s camper. McGhghy brought
a revolver and a semiautomatic firearm into the camper. At some point during the
gathering, the firearms were passed around to the group and Taylor decided to play
Russian roulette with the revolver, fatally shooting himself in the head.
McGhghy fled the scene before law enforcement officials arrived. All of the
witnesses to the shooting eventually provided interviews to law enforcement except
McGhghy. Some of the witnesses indicated McGhghy left the camper with the
semiautomatic weapon, which has never been recovered. McGhghy objected to the
statement in the presentence investigation report (“PSIR”) that he left the camper with
the semiautomatic firearm. Although the government declined to present evidence
on this issue, the district court noted the evidence in the record in support of the
statement and overruled McGhghy’s objection. The court determined the applicable
Sentencing Guidelines range was 63–78 months, rejected McGhghy’s request for a
sentence of 12 months and 1 day, and imposed a sentence of 48 months.
On appeal, McGhghy asserts the district court erred when it relied on the
PSIR’s allegation that McGhghy left the camper with the semiautomatic firearm;
relied on certain factual determinations related to McGhghy’s criminal history and the
revocation of a deferred judgment related to a previous arrest; noted McGhghy’s
refusal to interview with law enforcement officers; considered McGhghy’s treatment
and rehabilitation needs; allowed Taylor’s mother and grandmother to make victim
impact statements; and considered certain letters in support of McGhghy as relevant
to his prospects for rehabilitation.
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We review criminal sentences first for significant procedural error and then for
substantive reasonableness. United States v. Zeaiter, 891 F.3d 1114, 1121 (8th Cir.
2018). Upon careful review of the record, we find McGhghy’s claims of error fail.
The record does not support his claim that the district court considered whether he
fled the scene with the semiautomatic firearm when formulating its sentence. While
the court made numerous findings, none involved McGhghy leaving the camper with
the missing firearm. Likewise, McGhghy’s claim that his sentence was enhanced in
violation of the Fifth Amendment because he did not consent to a law enforcement
interview is not supported by the record. Although the district court noted that it did
not usually vary to the extent requested by McGhghy in the absence of substantial
assistance, there is no reason to view this statement as an indication that McGhghy’s
sentence was enhanced, especially since the court specifically noted that it was not
punishing McGhghy for failing to submit to an interview. McGhghy has not pointed
to any other consideration that the court failed to make and to which he was entitled.
As to McGhghy’s other claims, the district court’s findings related to his
criminal history and revocation of a deferred judgment are supported by the record.
We find no abuse of discretion in examining McGhghy’s treatment and rehabilitation
needs, or in considering the letters in support of McGhghy, or in allowing Taylor’s
mother and grandmother to make statements at sentencing.
The district court considered the relevant statutory factors and sufficiently
explained the reasons for the sentence it imposed. When a district court varies
downward from the applicable Sentencing Guidelines range, it is nearly
inconceivable to find the court abused its discretion because it did not vary downward
further. United States v. Deering, 762 F.3d 783, 787 (8th Cir. 2014). We affirm the
district court’s judgment.
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