United States of America v. Kevin Lynn Tucker

United States Court of Appeals
For the Eighth Circuit
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No. 22-2024
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United States of America
Plaintiff - Appellee
v.
Kevin Lynn Tucker
Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas - Central
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Submitted: March 13, 2023
Filed: May 25, 2023
[Unpublished]
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Before SHEPHERD, ERICKSON, and GRASZ, Circuit Judges.
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PER CURIAM.
Kevin Lynn Tucker was indicted on one count of being a felon in possession
of a firearm. He pled guilty pursuant to a plea agreement that contained an appeal
waiver. After accepting his plea, the district court1 sentenced Tucker to 60 months’
1 The Honorable James M. Moody Jr., United States District Judge for the
Eastern District of Arkansas.

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imprisonment followed by 3 years’ supervised release. Tucker appeals, arguing that
the district court erred by not reducing his sentence under United States Sentencing
Guidelines (USSG) § 5G1.3(b) in light of time already served in state custody and
by imposing an upward variance. Having jurisdiction under 28 U.S.C. § 1291, we
dismiss the appeal in part based on the appeal waiver and otherwise affirm.
In December 2019, while on state parole, Tucker was arrested in his home
pursuant to a state warrant for aggravated robbery. During the execution of the
warrant, law enforcement recovered a firearm in Tucker’s home. Tucker’s parole
was revoked, and he was taken into state custody. In June 2020, Tucker was charged
in federal court with one count of being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1), based on the firearm found in his residence. The
state aggravated robbery charges were subsequently dropped. In July 2021, Tucker
entered federal custody after having already served roughly 30 months in state
custody. In February 2022, he pled guilty to the felon-in-possession charge pursuant
to a plea agreement. Under the terms of his plea agreement, Tucker waived his right
to appeal his conviction on any non-jurisdictional basis, except for claims of
prosecutorial misconduct or a challenge to the substantive reasonableness of his
sentence if the district court imposed an above-Guidelines-range sentence. At
Tucker’s sentencing hearing, the district court calculated the advisory Guidelines
range as 30 to 37 months’ imprisonment. The district court then sentenced Tucker
to 60 months’ imprisonment followed by 3 years’ supervised release. Tucker now
appeals his sentence.2
Tucker first argues that the district court erred by failing to consider his time
spent in state custody in its decision to vary upward. Specifically, Tucker points to
USSG § 5G1.3(b), which “permits a departure to account for time already served
2 After Tucker filed his opening brief, the government filed a motion to dismiss
Tucker’s appeal in part on the basis that it is barred in part by the appeal waiver in
his plea agreement. After receiving Tucker’s response, we entered an order
accepting the government’s motion for consideration with the merits of Tucker’s
appeal, and we now dispose of both.

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where the current and prior offenses involve the same conduct.” United States v.
White, 354 F.3d 841, 845 (8th Cir. 2004) (citing USSG § 5G1.3(b), comment. (n.7)).
The government contends that Tucker’s argument is barred by the appeal waiver in
his plea agreement. “We review questions regarding the interpretation and
enforcement of plea agreements de novo.” United States v. Guzman, 707 F.3d 938,
941 (8th Cir. 2013) (citation omitted).
The merits of Tucker’s argument are dubious. For example, the Guidelines
provision Tucker cites permits departures, while the district court here imposed a
variance. Regardless, Tucker’s appeal on this ground is barred by his plea
agreement. We enforce appeal waivers if an “appeal falls within the scope of the
waiver and . . . both the waiver and plea agreement were entered into knowingly and
voluntarily.” United States v. Knight, 939 F.3d 933, 935 (8th Cir. 2019) (per curiam)
(quoting United States v. Andis, 333 F.3d 886, 889-90 (8th Cir. 2003) (en banc)).
We must also ensure that enforcing a waiver would not “result in a miscarriage of
justice.” Id. (citation omitted). Tucker’s plea agreement states:
[T]he defendant waives the right to appeal all non-jurisdictional
issues including, but not limited to, any issues relating to pre-trial
motions, hearings and discovery and any issues relating to the
negotiation, taking or acceptance of the guilty plea or the factual basis
for the plea, including the sentence imposed or any issues that relate to
the establishment of the Guideline range, except that the defendant
reserves the right to appeal claims of prosecutorial misconduct and the
defendant reserves the limited right to appeal the substantive
reasonableness of the sentence of imprisonment if the sentence is above
the Guideline range established at sentencing and if the defendant
makes a contemporaneous objection[.]
R. Doc. 35, at 3. By the plain language of his plea agreement, Tucker preserved his
right to appeal on only three bases: (1) a lack of jurisdiction, (2) prosecutorial
misconduct, and (3) a substantively unreasonable sentence if the sentence is above
the Guideline range established at sentencing and he made a contemporaneous
objection.

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These exceptions do not encompass Tucker’s first argument on appeal—that
the district court erred by failing to consider USSG § 5G1.3(b) in its variance
determination. Tucker insists that this is a substantive reasonableness challenge, but
we routinely consider challenges to the district court’s application of the Guidelines
as procedural, not substantive. See, e.g., United States v. Carter, 652 F.3d 894, 896
(8th Cir. 2011) (analyzing district court’s failure to apply USSG § 5G1.3(b) in its
Guidelines calculations as procedural error); cf. United States v. Feemster, 572 F.3d
455, 461 (8th Cir. 2009) (en banc) (“‘Procedural error’ includes ‘failing to calculate
(or improperly calculating) the Guidelines range . . . .’” (quoting Gall v. United
States, 552 U.S. 38, 51 (2007))). Further, the record indicates that Tucker knowingly
and voluntarily entered into the plea agreement. See United States v. Cooney, 875
F.3d 414, 416 (8th Cir. 2017) (“A defendant signing a plea agreement and assenting
again at a plea hearing generally indicate a knowing and voluntary waiver.”).
Moreover, enforcing the waiver would not result in a miscarriage of justice. See
United States v. St. Pierre, 912 F.3d 1137, 1144 (8th Cir. 2019) (finding no
miscarriage of justice in enforcing appeal waiver when the “appeal is grounded in
alleged errors by the district court in applying the Sentencing Guidelines”). Thus,
we dismiss this portion of Tucker’s appeal as barred by the appeal waiver in his plea
agreement.
Tucker also argues that his sentence was substantively unreasonable. Namely,
he contends that the district court erred in imposing an upward variance from the
Guidelines range without considering the mitigating impact of his time spent in state
custody. “When we review the imposition of sentences, whether inside or outside
the Guidelines range, we apply ‘a deferential abuse-of-discretion standard.’”
Feemster, 572 F.3d at 461 (citation 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.’” Id. (citation omitted). “When reviewing an above-Guidelines
sentence, we ‘consider the extent of the deviation, but must give due deference to
the district court’s decision that the § 3553(a) factors, on a whole, justify the extent

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of the variance.’” United States v. Mitchell, 825 F.3d 422, 426 (8th Cir. 2016) (per
curiam) (quoting Gall, 552 U.S. at 51).
Here, Tucker has not identified any abuse of discretion. The district court
considered the § 3553(a) factors and explained its reasons for the upward variance:
namely, Tucker’s lengthy and wide-ranging criminal history, including several
violent offenses, which the district court concluded was not adequately captured by
the Guidelines calculation. As we have previously noted, “[§] 3553(a) allows courts
to vary upward based on an underrepresented criminal history or recidivism.”
United States v. Barrett, 552 F.3d 724, 726 (8th Cir. 2009). Though Tucker argues
that the district court did not adequately consider his argument regarding his prior
incarceration, the sentencing court “need not specifically respond to every argument
made by the defendant or mechanically recite each § 3553(a) factor.” United States
v. Ballard, 872 F.3d 883, 885 (8th Cir. 2017) (per curiam) (citation omitted). “[The]
district court has ‘wide latitude’ to assign weight to give[n] factors, and ‘[t]he district
court may give some factors less weight than a defendant prefers or more weight to
other factors, but that alone does not justify reversal.’” United States v. Noriega, 35
F.4th 643, 651 (8th Cir. 2022) (second and third alterations in original) (citation
omitted). Accordingly, we find that Tucker’s above-Guidelines-range sentence is
substantively reasonable.
For the foregoing reasons, we dismiss the appeal in part and otherwise affirm
the judgment of the district court.
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