United States of America v. Malik Ross

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 21-1578
___________________________
United States of America
Plaintiff - Appellee
v.
Malik Ross
Defendant - Appellant
____________
Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
____________
Submitted: January 10, 2022
Filed: April 4, 2022
____________
Before LOKEN, GRUENDER, and ERICKSON, Circuit Judges.
____________
GRUENDER, Circuit Judge.
After Malik Ross pleaded guilty to embezzlement of bank funds and
conspiracy to embezzle bank funds, the district court1 sentenced him to 120 months’
imprisonment, an upward variance of approximately nine years from Ross’s
1 The Honorable Rodney W. Sippel, United States District Judge for the
Eastern District of Missouri.

-- 1 of 9 --

-2-
advisory sentencing guidelines range. Ross appeals, arguing that the district court
procedurally erred in calculating his sentence and that his sentence is substantively
unreasonable.
I.
Malik Ross pleaded guilty to embezzlement and conspiracy to embezzle. See
18 U.S.C. § 656. Ross’s advisory sentencing guidelines range was 8 to 14 months’
imprisonment. The Government requested an upward variance based on a shooting
involving Ross. At the sentencing hearing, two St. Louis police officers testified
that on August 12, 2019, the day before Ross committed the embezzlement, Ross
became irritated while in a convenience store. They also testified that while Ross
was leaving, he encountered two individuals and fired in their direction, killing a
seven-year-old child. Ross was not charged with any crime related to the shooting.
After the shooting, Ross and his aunt conspired to embezzle money from his
employer, an armored-truck company, so that he could leave town. Ross threw a
bag containing $50,000 out of the truck onto the street, which his aunt retrieved.
Before the sentencing hearing, Ross provided information to the district court
about his intellectual disability, including his low IQ and receipt of social-security
disability benefits. At the sentencing hearing, the district court found by a
preponderance of the evidence that Ross acted recklessly in firing his gun fourteen
times and attempted to evade responsibility by leaving town. The district court
varied upward from the guidelines range for Ross’s embezzlement convictions and
chose a sentence between the guidelines ranges for involuntary manslaughter and
second-degree murder that “reflect[ed] the seriousness of the [shooting] offense, the
reckless disregard for the community in discharging 14 rounds into the
neighborhood, resulting in a death [of a child] and serious injury to another person,
the dangers to the community, and, to some extent, to deter similar conduct.” The
district court also said it considered Ross’s intellectual disability in making its
determination. Ross was sentenced to 120 months’ imprisonment on each count to
be served concurrently. Ross appeals, arguing that the district court procedurally

-- 2 of 9 --

-3-
erred by failing to explain adequately its consideration of his intellectual disability.
Ross also argues that his sentence is substantively unreasonable.
II.
In reviewing a sentence, we first determine whether the district court
committed a significant procedural error. United States v. Feemster, 572 F.3d 455,
461 (8th Cir. 2009) (en banc). Then “we review for substantive reasonableness.”
United States v. Godfrey, 863 F.3d 1088, 1094 (8th Cir. 2017). We review a sentence
for an abuse of discretion, see id., but if a defendant fails to object at sentencing to
an alleged procedural error, we apply plain error review, United States v. Isler, 983
F.3d 335, 341 (8th Cir. 2020).
A.
“Procedural errors include failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence—including an explanation for any deviation
from the Guidelines range.” Godfrey, 863 F.3d at 1094-95 (internal quotation marks
omitted).
First, Ross argues that the district court procedurally erred by failing to
explain its consideration of his intellectual disability as a mitigating factor. See 18
U.S.C. § 3553(a)(1) (requiring the district court to consider “the history and
characteristics of the defendant”). Although a district court must explain its sentence
in a manner providing for meaningful appellate review, Gall v. United States, 552
U.S. 38, 50 (2007), it is not required to provide an extensive justification for its
sentencing determination, see Rita v. United States, 551 U.S. 338, 356-57 (2007);
United States v. Anderson, 926 F.3d 954, 957-58 (8th Cir. 2019) (noting that even
when the variance is substantial we have no special rules about the extent to which
a district court needs to explain a sentence). “[W]e do not require a district court to

-- 3 of 9 --

-4-
categorically rehearse each of the section 3553(a) factors on the record when it
imposes a sentence.” United States v. Richart, 662 F.3d 1037, 1049 (8th Cir. 2011).
The district court is merely required to “set forth enough to satisfy the appellate court
that he has considered the parties’ arguments and has a reasoned basis for exercising
his own legal decision-making authority.” Rita, 551 U.S. at 356.
We conclude that the district court properly explained its decision to vary
upward by about nine years. The district court said that it considered Ross’s
intellectual disability yet determined that an upward variance was proper after
weighing the § 3553(a) factors, including the seriousness of the offense, the potential
for the sentence to deter similar conduct, the danger Ross poses to the community,
and the resulting-death policy statement, U.S.S.G § 5K2.1. The district court’s
failure to discuss at length Ross’s intellectual disability does not render its
sentencing explanation inadequate. See United States v. Lee, 553 F.3d 598, 601 (8th
Cir. 2009); Anderson, 926 F.3d at 957-58 (concluding that the district court
adequately explained a sentence that included a substantial upward variance even
when the district court did not address mitigating factors directly). Thus, the record
demonstrates that the district court properly explained Ross’s sentence. See Isler,
983 F.3d at 341-42.
B.
Next, Ross argues that his ten-year prison sentence is substantively
unreasonable. “In the absence of procedural error below, we should then consider
the substantive reasonableness of the sentence imposed under an abuse-of-discretion
standard.” Feemster, 572 F.3d at 461 (internal quotation marks omitted). “A district
court abuses its discretion when it (1) fails to consider a relevant factor that should
have received significant weight; (2) gives significant weight to an improper or
irrelevant factor; or (3) considers only the appropriate factors but in weighing those
factors commits a clear error of judgment.” United States v. Borromeo, 657 F.3d
754, 756 (8th Cir. 2011). In determining the sentence to impose, a district court is
required to consider factors such as “the nature and circumstances of the offense and

-- 4 of 9 --

-5-
the history and characteristics of the defendant,” § 3553(a)(1), “the need for the
sentence imposed . . . to reflect the seriousness of the offense,” § 3553(a)(2)(A), the
guidelines sentencing range, § 3553(a)(4), and “any pertinent policy statement,”
§ 3553(a)(5). A district court has “wide latitude” in weighing the § 3553(a)
sentencing factors. United States v. Nguyen, 829 F.3d 907, 925-26 (8th Cir. 2016).
Indeed, “it will be 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.
1.
First, Ross argues that his sentence is substantively unreasonable because the
district court weighed too heavily the uncharged shooting incident in varying upward
by approximately nine years.2 We disagree. In varying, a district court is permitted
to consider whether the guidelines range adequately “reflect[s] the seriousness of the
offense,” “afford[s] adequate deterrence,” and “protect[s] the public.” See
§ 3553(a)(2)(A)-(C); United States v. Boelter, 806 F.3d 1134, 1136 (8th Cir. 2015).
“We may consider the extent of any deviation from the guideline range,” but “even
extraordinary variances do not require extraordinary circumstances.” United States
v. Johnson, 916 F.3d 701, 703 (8th Cir. 2019).
2 Ross also argues that it was error to apply the preponderance of the evidence
standard to the uncharged conduct. However, we have repeatedly held that a district
court may vary upward based on uncharged conduct that it finds by a preponderance
of the evidence, so long as the sentence does not exceed the statutory maximum.
See, e.g., United States v. Smith, 681 F.3d 932, 935-36 (8th Cir. 2012); United States
v. Shield, 831 F.3d 1079, 1083 (8th Cir. 2016). Here, the embezzlement offense has
a maximum statutory sentence of thirty years, and Ross was sentenced to ten years’
imprisonment. See 18 U.S.C. § 656. Thus, the district court’s application of the
preponderance of the evidence standard to the uncharged conduct was not error. See
Smith, 681 F.3d at 936.

-- 5 of 9 --

-6-
Here, the district court found that Ross recklessly fired a gun fourteen times
in a residential street, killing a seven-year-old boy, and attempted to evade
responsibility by stealing money to abscond. The district court then properly
considered the § 3553 factors, including the seriousness of Ross’s conduct, the
danger to the community, and the deterrence of similar conduct and found that the
guidelines range of 8 to 14 months’ imprisonment was inadequate. See § 3553(a)(2).
Although an approximately nine-year variance is significant, we have
affirmed substantial upward variances based on the serious nature of a defendant’s
conduct, including when the conduct is uncharged and related or unrelated to the
offense of conviction. See, e.g., Anderson, 926 F.3d at 956-58 (affirming an upward
variance from a guidelines range of 15 to 21 months’ imprisonment to 120 months’
imprisonment due to an uncharged shooting incident that nearly resulted in death
and was unrelated to the defendant’s conviction); Godfrey, 863 F.3d at 1092-94,
1099-1100 (affirming an upward variance from a guidelines range of 30 to 37
months’ imprisonment to 120 months’ imprisonment due to the defendant’s firing
of a handgun near children in a public park); United States v. Waller, 689 F.3d 947,
956-57, 960-61 (8th Cir. 2012) (affirming an upward variance from a guidelines
range of 10 to 16 months’ imprisonment to 60 months’ imprisonment due to an
uncharged murder); United States v. Porter, 439 F.3d 845, 847-48, 850 (8th Cir.
2006) (affirming an upward variance from a guidelines range of 57 to 71 months’
imprisonment to 120 months’ imprisonment due to pending kidnapping charges
related to the offense of conviction).
Thus, we conclude that the district court did not abuse its discretion in relying
heavily on the uncharged shooting incident to vary upward by approximately nine
years. See Anderson, 926 F.3d at 958; Borromeo, 657 F.3d at 756.
2.
Second, Ross argues that his sentence is substantively unreasonable because
the district court granted no weight to several mitigating factors: his intellectual

-- 6 of 9 --

-7-
disability, his remorse and lack of criminal history, and the fact that he could not see
the child because the child was obscured by foliage. As to the last factor, he
specifically argues that (1) the resulting-death policy statement requires the district
court to consider “the extent to which death or serious injury was intended or
knowingly risked,” and (2) because Ross committed at most reckless involuntary
manslaughter, the district court should not have varied above the reckless-
involuntary-manslaughter guidelines range.
The district court has “wide latitude” in weighing the § 3553(a) factors and
“may give some factors less weight than a defendant prefers or more weight to the
other factors, but that alone does not justify reversal.” Isler, 983 F.3d at 344. The
district court considered Ross’s intellectual disability and heard testimony about
Ross’s remorse and the shrubbery blocking Ross’s view of the alley where the seven-
year-old child was struck, and the presentence investigation report indicated that
Ross has no criminal history. See § 3553(a)(1). That the district court weighed more
heavily “the seriousness of the offense,” “deterrence to criminal conduct,”
protection of the public, and the reckless nature of Ross’s conduct, see § 3553(a)(1),
(2)(A)-(C), does not make Ross’s sentence substantively unreasonable. See Isler,
983 F.3d at 344.
Ross’s policy-statement argument has no merit because the district court
considered § 5K2.1, including “the extent to which death or serious injury was
intended or knowingly risked,” by noting that Ross recklessly fired the gun fourteen
times. Finally, as to Ross’s guidelines-range argument, “[t]he court’s sentencing
discretion is not limited to what the Guidelines-range sentence would have been had
[the defendant] been convicted of an offense related to [the prior uncharged
conduct].” See Anderson, 926 F.3d at 958. Thus, the district court did not abuse its
discretion in varying significantly upward despite the existence of mitigating factors.
See id.

-- 7 of 9 --

-8-
III.
For the foregoing reasons, we affirm Ross’s sentence.
ERICKSON, Circuit Judge, concurring.
Malik Ross stands convicted of embezzling bank funds, not manslaughter or
murder. Yet he received a 120-month sentence—more than eight times the high end
of the applicable guidelines range—because a judge determined he recklessly fired
a gun resulting in the tragic death of a child. Missouri prosecutors expressly declined
to charge Ross for the killing. And he disputed his culpability at sentencing, arguing
that he fired the shots in self-defense after two individuals confronted him and shot
first. Rather than a jury deciding Ross’s guilt beyond a reasonable doubt, however,
the sentencing judge found him responsible for homicide under a more-likely-than-
not standard.3 Though the guidelines and our precedent allow that outcome, I
believe the Constitution demands otherwise.
The Sixth Amendment guarantees every person “accused” of a crime the right
to a trial “by an impartial jury.” Combined with the Fifth Amendment’s Due Process
Clause, that command means “each element of a crime [must] be proved to the jury
beyond a reasonable doubt.” Alleyne v. United States, 570 U.S. 99, 104 (2013).
Facts that increase the penalty for a crime are elements. See Apprendi v. New Jersey,
530 U.S. 466, 483 n.10 (2000). “It unavoidably follows that any fact necessary to
prevent a sentence from being substantively unreasonable—thereby exposing the
defendant to the longer sentence—is an element that must be either admitted by the
defendant or found by the jury.” Jones v. United States, 574 U.S. 948, 949-50 (2014)
(Scalia, J., joined by Thomas and Ginsburg, JJ., dissenting from denial of certiorari);
see United States v. McReynolds, 964 F.3d 555, 564 n.1 (6th Cir. 2020) (collecting
separate opinions advocating similarly).
3 In Missouri, “if substantial evidence is presented [on] the elements of self-
defense, then . . . the State has the burden of proving a lack of self-defense beyond
a reasonable doubt.” State v. Bruner, 541 S.W.3d 529, 530 (Mo. 2018) (en banc).

-- 8 of 9 --

-9-
Ross may well be culpable for killing a young child—an odious crime worthy
of a lengthy sentence. But the Constitution should have afforded him an opportunity
to present his defense to a jury. As things sit today, we along with every other circuit
“have declined to extend Apprendi in this way.” United States v. Briggs, 820 F.3d
917, 921-22 (8th Cir. 2016) (collecting cases). I reluctantly concur and urge district
judges “to disclaim reliance on acquitted or uncharged conduct” in future cases like
this one. See United States v. Bell, 808 F.3d 926, 928 (D.C. Cir. 2015) (Kavanaugh,
J., concurring in denial of reh’g en banc).
______________________________

-- 9 of 9 --