United States of America v. Andre Bell-Washington

United States Court of Appeals
For the Eighth Circuit
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No. 23-3532
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Andre Bell-Washington
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: September 23, 2024
Filed: January 13, 2025
[Published]
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Before COLLOTON, Chief Judge, LOKEN and SHEPHERD, Circuit Judges.
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PER CURIAM.
Andre Bell-Washington pleaded guilty to being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). The Presentence Investigative Report
(PSR) calculated an advisory guidelines sentencing range of 21 to 27 months
imprisonment, based on a total offense level of 12 and criminal history category IV.

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The statutory-maximum sentence is 15 years. At sentencing, the district court1
adopted the PSR advisory range without objection. Both parties recommended a 27-
month sentence. Varying upward, the district court sentenced Bell-Washington to 60
months imprisonment. He appeals, arguing the sentence is substantively
unreasonable. As in United States v. Hubbs, we conclude the district court did not
abuse its “substantial sentencing discretion” and therefore affirm. 18 F.4th 570, 572
(8th Cir. 2021). “The district court considered [Bell-Washington’s] mitigating
factors, weighed them against his extensive criminal history and propensity for
violence, and concluded that an upward variance was warranted.” Id. at 573.
In July 2022, members of a Kansas City FBI violent crimes task force stopped
a car traveling with an expired temporary tag for a traffic violation and for a “high-
risk vehicle check” because the vehicle’s passenger, Bell-Washington, matched the
description of a possibly armed fugitive. Officers ordered the driver and passenger
to exit the vehicle. The driver complied. Bell-Washington remained in the front
passenger seat, repeatedly looked over his shoulder at the officers, ignored their
commands, and kept his right hand obstructed from their view. When the officers
deployed two noise flash diversionary devices near the vehicle, Bell-Washington
exited and was detained.
Bell-Washington was not the suspected fugitive, but an on-scene records check
revealed he was a convicted felon. The driver, Bell-Washington’s mother, informed
the officers in an on-scene interview that he had been “acting weird” for a few days
and was holding a firearm when the vehicle was pulled over, refusing her pleas to put
the weapon down. She believed he intended to shoot at the officers and consented
to a vehicle search. The officers discovered a loaded handgun on the floorboard of
the front passenger seat where Bell-Washington was seated, with one live round in
1The Honorable Greg Kays, United States District Judge for the Western
District of Missouri.
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the chamber. A computer check showed a prior Missouri felony conviction for
Involuntary Manslaughter 1st Degree and Armed Criminal Action.
The PSR detailed Bell-Washington’s extensive criminal history, which
included the first degree involuntary manslaughter and armed criminal action
conviction in 2016, when Bell-Washington was 23 years old, in which he shot the
victim multiple times in the head after agreeing to buy marijuana. The PSR detailed
numerous other convictions beginning when Bell-Washington was 17 that included
fleeing from police, resisting arrest multiple times, threatening officers, stealing,
domestic violence, and possession of drug paraphernalia. In addition, Bell-
Washington received fifteen institutional conduct violations while serving the
involuntary manslaughter sentence and committed this firearm offense while on
parole for the manslaughter offense.
After hearing argument and a statement from Bell-Washington, the district
court explained why it was varying upward from the advisory guidelines range. The
court began by stating it was required to consider the 18 U.S.C. § 3553(a) sentencing
factors, “and I’ve considered all those factors.” The court then focused on relevant
mitigating factors -- the support of family members who wrote and attended the
sentencing hearing and the fact that Bell-Washington “did take responsibility in a
timely way.” However, the court continued:
Then we look at the other side of this. There’s a factor called
respect for the law. And the fact that law enforcement couldn’t get you
out of that car and they had to use these devices, explosive devices, to
get you out of the car while you’re on parole for involuntary
manslaughter, where someone was shot multiple times in the head, that’s
not helping you, right?
. . . So respect for the law is a big one here. And that’s also
illustrated in [PSR] paragraph 31, where you fled from police, resisted
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arrest, threatened police afterwards. . . . You were stealing in a general
merchandise store of some sort.
Then in paragraph 32 is another case of obstructing or resisting
arrest.
And then we have domestic assault in paragraph 34.
And then, of course, involuntary manslaughter first degree and
armed criminal action, for which you had just got out of prison . . . not
very much ahead of when you came in contact with law enforcement.
* * * * *
. . . [W]e also look at how you’re going to do on supervised
release when you get out. And you had 15 institutional conduct
violations while you were incarcerated. And that goes to respect for the
law . . . .
. . . [T]he max is 15 years on this case. You’re not going to get 15
years today, but you’re not going to get 27 months. It just doesn’t fit.
Based on this conduct, based on someone who’s already died on the
streets of Kansas City and you get caught with a gun right after -- pretty
close to after you get out of prison, this is just a recipe for disaster.
* * * * *
So it is the judgment and sentence of this Court . . . that Mr.
Andre Bell-Washington is hereby committed to the custody of the
Bureau of Prisons for 60 months on this one-count indictment. This is
above the guidelines. This is a variance above the guidelines. And it’s
really kind of tempered with the fact that you did admit this, you did
take responsibility; otherwise, I think it could have been much higher,
Mr. Bell-Washington.
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On appeal, Bell-Washington argues the district court abused its discretion by
imposing an excessive sentence significantly above the advisory guidelines range.
“We review a defendant’s challenge to substantive reasonableness under a highly
deferential abuse-of-discretion standard.” United States v. Jones, 71 F.4th 1083,
1086 (8th Cir. 2023). A district court abuses its sentencing 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. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (quotation
omitted). It is “the unusual case when we reverse a district court sentence -- whether
within, above, or below the applicable Guidelines range -- as substantively
unreasonable.” Id. at 464. “When the district court imposes a sentence outside the
Guidelines range, [this court] may 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 of the variance.” United States v. Luscombe, 950 F.3d 1021, 1031-
32 (8th Cir. 2020) (quotation omitted).
After careful review, we conclude the district court did not abuse its substantial
discretion in varying significantly above the guidelines range. The court properly
considered Bell-Washington’s offense conduct, his criminal history, and relevant
mitigating factors, applying the § 3553(a) sentencing factors. Bell-Washington’s
“disagreement with how the district court weighed the [§ 3553(a)] factors does not
demonstrate abuse of discretion.” United States v. McSmith, 968 F.3d 731, 737 (8th
Cir. 2020). “[A] district court has wide latitude to assign weight to sentencing
factors, and the district court may give some factors less weight than a defendant
prefers or more weight to the other factors, but that alone does not justify reversal.”
United States v. Isler, 983 F.3d 335, 344 (8th Cir. 2020) (quotations omitted).
Bell-Washington contends that the Guidelines already consider and account for
the criminal history factors that the district court reviewed when varying upward.
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Although prior convictions are incorporated in the guidelines range, we have
repeatedly stated that “a sentencing court may vary upward based on criminal history
already accounted for by the Guidelines.” United States v. Manuel, 73 F.4th 989, 993
(8th Cir. 2023); see United States v. Obi, 25 F.4th 574, 581-82 (8th Cir. 2022). Even
when the government has recommended a guidelines range sentence, rather than a
variance, “it is the district court judge, not the Government, that is responsible for
determining the appropriate sentence for a criminal defendant after considering the
factors of section 3553(a).” Hubbs, 18 F.4th at 573 (quotation omitted).
Bell-Washington argues there was “nothing egregious” about his possession
of a firearm found on the vehicle’s floorboard -- he did not point, shoot, threaten
anyone, or commit another felony offense while having the weapon. But Bell-
Washington’s mother told the officers that he was holding the firearm and was
prepared to use it against the police when the vehicle was stopped, consistent with his
prior history of violent offenses against police officers and others. Bell-Washington
labels his firearm possession a “mine run” offense. But his criminal history is not that
of a “mine run” felon-in-possession offender. “We may consider the extent of any
deviation from the guideline range, but Gall [v. United States, 552 U.S. 38 (2007)]
forbids requiring proportional justifications for variances from the range, and even
extraordinary variances do not require extraordinary circumstances.” United States
v. Owens, 966 F.3d 700, 710 (8th Cir. 2020) (quotation and citation omitted), cert.
denied, 141 S. Ct. 2812 (2021).
These well-established precedents confirm that the district court did not abuse
its discretion in imposing a sentence that included an upward variance. Accordingly,
the judgment of the district court is affirmed.
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