United States of America v. Ozzie L. Palen

United States Court of Appeals
For the Eighth Circuit
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No. 22-3664
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United States of America
Plaintiff - Appellee
v.
Ozzie L. Palen
Defendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: September 19, 2023
Filed: November 20, 2023
[Unpublished]
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Before SHEPHERD, KELLY, and STRAS, Circuit Judges.
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PER CURIAM.
Ozzie Palen challenges the substantive reasonableness of the 24-month
sentence that the district court1 imposed upon revoking his supervised release.
Having jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we affirm.
1 The Honorable Brian C. Buescher, United States District Judge for the
District of Nebraska.

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In February 2020, Palen pled guilty to escaping from federal custody, in
violation of 18 U.S.C. § 751(a), and was sentenced to 30 months’ imprisonment with
3 years of supervised release to follow. Less than one month after commencing
supervised release, Palen was charged in Iowa state court with felony attempted
murder, assault with a dangerous weapon, and willful injury. He pled guilty to
willful injury, and the state court sentenced him to ten years’ imprisonment, stating
its intent that any federal sentence stemming from the conviction should run
concurrently with the state sentence pursuant to Palen’s plea agreement. Based on
these charges, the Government sought to revoke Palen’s supervised release.
At his revocation hearing, Palen admitted that the underlying offense violated
a release condition, and both parties agreed that the 12-month sentence
recommended by the United States Probation Office was appropriate. Palen,
however, requested that the revocation sentence run concurrently with his state
sentence, while the Government asked that it run consecutively. The district court
ultimately sentenced Palen to 24 months’ imprisonment—the statutory maximum
under 18 U.S.C. § 3583(e)(3)—and 12 months of supervised release. An explanation
for the sentence was provided:
In crafting this disposition, I have considered all of the factors
outlined—referenced in 18 U.S.C. Section 3583(e), including general
deterrence, specific deterrence, protection of the public, the need to
avoid unwarranted sentencing disparities, and the specific history and
characteristics of the defendant. The Court has also considered the
nature of the violation. The Court further notes that the defendant
committed the violation within the first few months of his supervised
release.
The district court further ordered the sentence to run consecutively to Palen’s state
sentence under United States Sentencing Guideline (USSG) § 7B1.3(f), remarking
that the state court’s recommendation in the underlying sentencing proceeding was
“rather odd” and questioning whether the state court “ha[d] any authority to . . . make
that decision.”

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On appeal, Palen asserts that his sentence is substantively unreasonable, first
arguing that the district court made a clear error of judgment in weighing the relevant
sentencing factors under 18 U.S.C. § 3553(a). “We apply the same abuse-of-
discretion standard of review to a district court’s revocation sentencing decision that
we apply to initial sentencing decisions.” United States v. Valure, 835 F.3d 789,
790 (8th Cir. 2016). A district court abuses its discretion when 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 the appropriate factors
but commits a clear error of judgment in weighing those factors.” United States v.
Miller, 34 F.4th 663, 665 (8th Cir. 2022) (citation omitted).
Palen specifically contends that the district court placed undue weight on the
nature of the underlying offense and thus punished him for his state-court conviction
rather than for violating a condition of supervised release. See USSG Ch.7, Pt.A,
intro. comment. 3(b) (“[A]t revocation the court should sanction primarily the
defendant’s breach of trust, while taking into account, to a limited degree, the
seriousness of the underlying violation and the criminal history of the violator.”).
But the record does not reveal that the district court relied on the seriousness of
Palen’s conviction for willful injury beyond “a limited degree” or sought to punish
him for the underlying conduct. The district court rather observed the haste with
which Palen violated his supervised release, indicating that the revocation sentence,
which was to run consecutively to the state sentence, was intended to sanction
Palen’s breach of trust inherent in the conditions of supervision. Cf. United States
v. Short, 798 F. App’x 46, 47 (8th Cir. 2020) (per curiam) (rejecting the same
argument and noting that “the federal system has an independent interest of what the
state courts do” to punish defendants for violating their conditions of supervised
release); see also USSG Ch.7, Pt.A, intro. comment. 3(b) (noting that because “the
court with jurisdiction over the criminal conduct leading to revocation is the more
appropriate body to impose punishment for that new criminal conduct . . . the
sanction for the violation of trust should be in addition, or consecutive, to any
sentence imposed for the new conduct”).

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Palen next contends that the district court failed to adequately weigh his need
for rehabilitation when imposing a consecutive sentence because the federal detainer
that accompanies such a sentence will inhibit his ability to participate in vocational
programs while in state prison. The case that Palen cites in support, United States
v. Dovalina, does not support his claim. 711 F.2d 737, 739-40 (5th Cir. 1983)
(“[T]here is nothing about a federal sentence consecutive to a state sentence, or about
a federal detainer, which has any legal effect whatever on the decision of state
authorities to place a state prisoner in one or another state program.” (citation
omitted)). But even if Palen’s contention is accurate, a district court has wide
latitude under § 3553(a) to lend more weight to some sentencing factors than it does
to others. United States v. Wickman, 988 F.3d 1065, 1067 (8th Cir. 2021). To this
end, a district court is not required to mechanically recite the § 3553(a) factors, nor
is it obligated to make specific factual findings for each factor that it references.
United States v. Franklin, 397 F.3d 604, 606-07 (8th Cir. 2005). “[A]ll that is
generally required to satisfy the appellate court is evidence that the district court was
aware of the relevant factors.” United States v. Miller, 557 F.3d 910, 917 (8th Cir.
2009) (alteration in original) (citation omitted).
Here, the district court stated that it had considered all of the § 3553(a) factors
referenced in § 3583(e) and then offered a non-exhaustive list of these factors.
Moreover, the judge who presided over Palen’s revocation hearing also imposed his
initial sentence, further evincing the district court’s awareness of the relevant
sentencing factors as they applied to Palen, including the need for rehabilitation. See
id. at 918. “A defendant’s dissatisfaction with a district court’s balancing of the
§ 3553(a) factors does not indicate that the district court abused its discretion.”
Wickman, 988 F.3d at 1067 (citation omitted). Palen voices nothing more than his
dissatisfaction with how the district court balanced the relevant sentencing factors;
his argument is therefore unavailing.
Palen finally argues that the district court abused its discretion in imposing a
consecutive sentence by failing to consider whether the state sentence was sufficient
to satisfy the federal sentencing goals enumerated in § 3553(a). 18 U.S.C. § 3584(a)

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provides that “if a term of imprisonment is imposed on a defendant who is already
subject to an undischarged term of imprisonment, the terms may run concurrently or
consecutively,” provided that the district court considers the § 3553(a) factors when
making its determination. United States v. Becker, 636 F.3d 402, 408 (8th Cir. 2011)
(noting the discretion that a district court has under § 3584 to impose a concurrent
or consecutive sentence). This statute extends to revocation sentences, including
those ordered to run consecutively to an undischarged state sentence. United States
v. Alexander, 500 F. App’x 547, 547 (8th Cir. 2013) (per curiam); see also United
States v. Benson, 888 F.3d 1017, 1019 (8th Cir. 2018); United States v. Cotroneo,
89 F.3d 510, 512-13 (8th Cir. 1996). USSG § 7B1.3(f) further advises that “[a]ny
term of imprisonment imposed upon the revocation of probation or supervised
release shall be ordered to be served consecutively to any sentence of imprisonment
that the defendant is serving.”
The record demonstrates that the district court considered the § 3553(a)
factors as referenced in § 3583(e) and relied on USSG § 7B1.3(f) when it fashioned
a consecutive sentence. See United States v. Rutherford, 599 F.3d 817, 822 (8th Cir.
2010) (finding that the district court comported with § 3584 by discussing the
§ 3553(a) factors despite “completely omit[ing] a discussion of § 3584 in making its
sentencing decision”). And while the district court did not elaborate on most of the
factors cited, it had no obligation to do so. Franklin, 397 F.3d at 606 (rejecting the
appellant’s abuse-of-discretion argument because consideration of the § 3553(a)
factors could be “inferred from the record,” including through arguments from
counsel).
As to Palen’s claim that the district court erred in failing to attribute
“significant weight” to the Iowa state court’s recommendation that any federal
sentence should run concurrently with his state sentence, Palen acknowledged at the
revocation hearing and in his brief that the state court’s remarks had no binding
effect on the district court. See United States v. Mathis, 451 F.3d 939, 942 (8th Cir.
2006) (finding the district court’s imposition of a consecutive sentence reasonable
despite the state court’s intent for the sentence to run concurrently). The district

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court did not abuse its discretion in ordering Palen’s revocation sentence to run
consecutively to his state sentence.
After careful review of the record, we are satisfied that the district court
adequately considered the § 3553(a) factors, committed no abuse of discretion in
weighing those factors, and ultimately imposed a substantively reasonable sentence.
The judgment of the district court is affirmed.
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