United States of America v. April Paw

United States Court of Appeals
For the Eighth Circuit
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No. 22-2136
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United States of America
Plaintiff - Appellee
v.
April Paw
Defendant - Appellant
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Appeal from United States District Court
for the District of South Dakota – Northern
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Submitted: March 16, 2023
Filed: June 13, 2023
[Unpublished]
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Before COLLOTON, MELLOY, and GRUENDER, Circuit Judges.
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PER CURIAM.
April Paw pled guilty to conspiracy to distribute a controlled substance
(methamphetamine) in violation of 21 U.S.C. § § 841(a)(1) and 846. The presentence
investigation report (PSR) recommended a guideline range of 87 to 108 months.
However, a 10-year statutory mandatory minimum moved the guideline “range” to

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120 months. The district court1 found Paw’s criminal history was underrepresented
and departed upward. The resulting guideline range was 121 to 151 months of
imprisonment. The district court sentenced Paw to 151 months of imprisonment.
Paw appeals, arguing the district court committed a procedural error by not
explaining the departure and abused its discretion in ordering a substantively
unreasonable sentence. We affirm.
I.
Paw spent most of her childhood at a refugee camp in Thailand before moving
to the United States when she was 22. Paw was the victim of domestic violence both
at the refugee camp in Thailand and in the United States. After living for a few years
in Minnesota, she moved to South Dakota and began working at a manufacturing
plant. After having a child, Paw stopped working at the manufacturing plant and
began selling methamphetamine.
On May 12, 2020, Paw was arrested for distribution of methamphetamine.
Paw was housed in the Brown County Jail in Aberdeen. While Paw was in the county
jail, law enforcement received multiple tips that Paw was actively trying to recruit
cell mates to sell methamphetamine and Paw was continuing to “call[] the shots”
from inside the jail. Paw posted bail on October 24, 2020. After Paw was released,
a confidential informant told law enforcement that Paw was planning to receive
methamphetamine from a Minnesota supplier. Law enforcement arrested the
supposed supplier who identified Paw as the “boss lady.” Paw was arrested again on
November 6, 2020, and subsequently released on a personal recognizance bond. On
October 4, 2021, she pled guilty to a single count of conspiracy to distribute a
controlled substance. She was sentenced in May 2022. Paw complied with all rules
of release during the fifteen months she was out on a personal recognizance bond.
1 The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.

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The PSR originally recommended a total offense level of 29 and a criminal
history category of I. The resulting range would have been 87 to 108 months. A
statutory mandatory minimum moved the guideline “range” to 120 months. U.S.S.G.
§ 5G1.1(b). Paw did not file objections to the presentence report. Before sentencing,
the district court filed a memorandum noting that the court was “disturbed by the
facts that the defendant was continuing to sell illegal substances from the Brown
County jail and attempting to recruit other sellers of drugs who were in custody. All
of these constitute other very serious crimes. A criminal history category of I
serious[ly] understates the actual criminal history of the defendant. This will provide
notice that I will be considering an upward departure or upward variance as to Ms.
Paw.” Both Paw and the government recommended a 120-month sentence.
At sentencing, the district court noted: “I find that her criminal history
category of I is inadequate and does not represent the scope and breadth of the
Defendant’s criminal activities, including recruiting others already in custody to sell
drugs and trying to obtain drugs—further drugs herself. And so what is her actual
proper criminal history category? If you translate the 120-month minimum, we’re
dealing with a criminal history category of approximately IV, which has a range of
121 to 151 months. And I find that a IV is the proper criminal history category for
this Defendant. Not a III, not a II, but IV.” The district court went on to reiterate that
Paw’s actions in the jail were not only serious but also unusual. The district court
then addressed Paw’s mitigation argument, finding Paw’s assertion that she needed
to sell drugs to stay at home with her newborn was not persuasive. The district court
then sentenced Paw to 151 months’ imprisonment.
Defense counsel objected to the departure “to criminal history category IV
because it would ignore any opportunity for deterrence that a conviction could have
had for Ms. Paw. . . .” The court overruled the objection, noting “I’m relying on what
I talked about largely in connection with her activities while in the Brown County
Jail. She was committing numerous other crimes there.”

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Paw makes two arguments on appeal. First, she argues the district court
committed a procedural error by not explaining how it arrived at criminal history
category IV. Second, she argues the sentence is substantively unreasonable because
it did not account for mitigating circumstances.
II.
“Pursuant to USSG § 4A1.3, a court may impose an upward departure if
‘reliable information indicates that the defendant’s criminal history category
substantially under-represents the seriousness of the defendant’s criminal history or
the likelihood that the defendant will commit other crimes.’” United States v.
Sullivan, 853 F.3d 475, 479 (8th Cir. 2017) (citation omitted). We review a departure
under § 4A1.3 for abuse of discretion. United States v. Azure, 536 F.3d 922, 930
(8th Cir. 2008). The district court did not abuse its discretion by departing upward
after noting Paw’s uncharged criminal conduct from the jail. See id. at 931.
If a district court chooses to depart it must adequately explain any departure—
failure to do so may be a significant procedural error. Azure, 536 F.3d at 932. There
is no set amount of explanation required. “While we do not require a ‘ritualistic
exercise in which the sentencing court mechanically discusses each criminal history
category it rejects en route to the category that it selects,’ the sentencing court ‘must
adequately explain why it concludes the intermediary categories fail to meet the
purposes of § 4A1.3.’” Sullivan, 853 F.3d at 479 (citation omitted). Because failure
to explain a departure is a procedural error, “we review the district court’s factual
findings for clear error and its application of the guidelines de novo.” Sullivan, 853
F.3d at 479.
The district court did not commit a procedural error by failing to explain the
departure in more detail. In this case, the district court noted an upward departure
was necessary because: “I guess I’ve never had a case in the 27 years I’ve been on
the bench where someone is stupid enough to be trying to recruit other prisoners and
to obtain further drugs to be sold illegally when they’re in jail.” The district court’s

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explanation is sufficient given how the mandatory minimum changed the calculus
and how the district court discussed Paw’s conduct in the jail. See e.g., United States
v. Cooke, 853 F.3d 464, 473 (8th Cir. 2017) (“[W]e have previously upheld
nonextensive explanations of upward departures so long as the district court
‘adequately explained [its] rationale for the sentence imposed.’” (citation omitted)).
Finally, the sentence is not substantively unreasonable. “A district court
abuses its discretion and imposes an unreasonable sentence when it fails to consider
a relevant and significant factor, gives significant weight to an irrelevant or improper
factor, or considers the appropriate factors but commits a clear error of judgment in
weighing those factors.” United States v. White, 816 F.3d 976, 987 (8th Cir. 2016)
(citation omitted). All relevant factors were presented to the district court and the
district court did not consider any improper factors. It was within the district court’s
discretion to not give more weight to Paw’s history of abuse or other mitigating
evidence.
III.
Accordingly, we affirm the judgment of the district court.
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