United States of America v. James Elbert Harrell

United States Court of Appeals
For the Eighth Circuit
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No. 19-2350
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
James Elbert Harrell
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Davenport
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Submitted: September 25, 2020
Filed: December 15, 2020
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Before KELLY, WOLLMAN, and STRAS, Circuit Judges.
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KELLY, Circuit Judge
James Harrell pleaded guilty to being a prohibited person in possession of a
firearm, in violation of 18 U.S.C. §§ 922(g)(1), 922(g)(9), and 924(a)(2). The district
court1 imposed a sentence of 46 months in prison. Harrell challenges this sentence
1The Honorable Judge John A. Jarvey, Chief Judge, United States District
Court for the Southern District of Iowa.

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as both procedurally and substantively unreasonable. After considering Harrell’s
arguments on appeal, we affirm.
I.
On the night of March 18, 2018, police officers in Davenport, Iowa, responded
to a report of shots fired downtown, near the Scott County courthouse. As the
officers were speaking to witnesses outside, Harrell drove by in a white Kia sedan,
and the witnesses identified him as the shooter. The officers left the courthouse
parking lot and, as they began to pursue the Kia, Harrell accelerated. In the officers’
estimate, Harrell reached speeds of 75 to 85 miles per hour through a residential area
and also ignored several stop signs. After leading the officers on a chase for
approximately 15 blocks, Harrell lost control of the car and crashed. The officers
approached the Kia, found Harrell unconscious, and called for medical assistance.
As they attended to Harrell, the officers spotted a nine-millimeter pistol on the
driver’s side floorboard. Following this incident, Harrell was indicted on and
ultimately pleaded guilty to one count of being a prohibited person in possession of
a firearm.
In June 2019, the district court held a sentencing hearing, where it calculated
Harrell’s advisory Guidelines range as 46 to 57 months in prison. The government
argued for a 57-month sentence, noting, among other things, the danger posed by
Harrell’s conduct the night of the underlying incident. The government presented no
evidence at sentencing but argued: “[Mr. Harrell’s behavior] is extraordinarily
dangerous. This community has a significant problem with gun violence and eluding
behavior, both of which are behaviors that Mr. Harrell demonstrated on that night.”
Harrell, in turn, advocated for a downward variance from the applicable Guidelines
range. He presented evidence of the mental health struggles he was experiencing at
the time of the offense and detailed the positive changes he had made in his life in the
months since. He requested a sentence of five years’ probation.
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The court then announced its sentence. It stated that it had “considered each
of the factors found in [18 U.S.C. § 3553(a)], which means I have considered the
nature and the circumstances of this offense as well as the history and characteristics
of Mr. Harrell.” Elaborating on the nature of the offense, it described the
“exceedingly aggravated” circumstances of the crime, which involved Harrell
shooting a gun at another car and then fleeing from the police at a high speed. The
district court stated:
[The government] is right, that the Quad Cities has experienced
extraordinary gun violence over the last decade and this is a part of it.
This is right downtown. If people knew that you had your criminal
history and that you had a gun, they would avoid you three blocks away.
The court went on to consider “the question of just punishment,” “the need for
adequate deterrence to criminal conduct,” and Harrell’s “mental health history, his
treatment, his post-offense efforts at rehabilitation, [and] his work history.”
The district court then imposed a sentence of 46 months in prison, followed
by three years of supervised release. Harrell now appeals.
II.
A.
When reviewing a sentence on appeal, we first ensure that no procedural error
occurred, and then we review the sentence for substantive reasonableness. United
States v. Cloud, 956 F.3d 985, 986 (8th Cir. 2019). Here, Harrell argues that the
district court committed procedural error by relying on facts not in the record in
selecting its sentence. Specifically, he points to the district court’s statement that “the
Quad Cities has experienced extraordinary gun violence over the last decade” and its
suggestion that people would avoid Harrell if they knew his criminal history.
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Because the record did not include information about rates of local gun violence or
community perception of him, Harrell argues that his sentence was based on improper
speculation.
When, as here, no objection is made before the district court, we review
claimed procedural errors for plain error. United States v. Bain, 586 F.3d 634, 639
(8th Cir. 2009). To demonstrate plain error, a defendant must show “(1) error, (2)
that is plain, (3) that affects substantial rights, and (4) that seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” United States v.
Bonnell, 932 F.3d 1080, 1082 (8th Cir. 2019) (cleaned up).
In selecting a sentence, a district court may rely on undisputed factual
allegations in the Presentence Investigative Report (PSR), see United States v. Zayas,
758 F.3d 986, 990 (8th Cir. 2014), reliable evidence introduced by the parties, see
United States v. Urbina-Mejia, 450 F.3d 838, 840 (8th Cir. 2006), and, to some
extent, its own judicial experience, see United States v. Hill, 552 F.3d 686, 692 (8th
Cir. 2009); but see United States v. McMullen, 86 F.3d 135, 138 (8th Cir. 1996).
However, sentencing courts may not engage in speculation or draw inferences
unsupported by the record. See, e.g., United States v. Kane, 639 F.3d 1121, 1131-32
(8th Cir. 2011) (district court committed procedural error when it commented that the
defendant was unlikely to recidivate, as nothing in the record supported that
conclusion); United States v. Stokes,750 F.3d 767, 771-72 (8th Cir. 2014) (district
court committed procedural error when it suggested during sentencing that a
defendant’s lack of employment indicated that he was “probably” selling drugs,
because “the record facts simply [did] not support” such an inference).
Even if we assume the district court’s statement about “extraordinary gun
violence” in the Quad Cities was plainly erroneous because it is unsupported by the
record and the PSR, Harrell must also show that the purported error affected his
substantial rights. To do so, Harrell must show “a reasonable probability that but for
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the error he would have received a more favorable sentence.” Bonnell, 932 F.3d at
1083 (cleaned up). When a district court relies on speculation or facts not in the
record, we consider whether such reliance was a “principal basis” for the sentence.
See United States v. Durr, 875 F.3d 419, 421 (8th Cir. 2017). Here, when
determining Harrell’s sentence, the district court pointed to a number of aggravating
factors, including the danger Harrell’s conduct posed to the community. The court
described the case as “obviously serious” and “not [a firearm] offense in its most
basic form,” as it involved shots fired and eluding the police at a high rate of speed.
The court also considered Harrell’s prior convictions and “the need for adequate
deterrence.” Given the emphasis placed on these factors, we are not convinced that
the district court’s statements about gun violence—or about potential community
perceptions of Harrell—formed a principal basis for the sentence. See United States
v. Eagle Pipe, 911 F.3d 1245, 1248 (8th Cir. 2019) (finding no plain error when “the
record does not support a conclusion that [a district court’s unsupported remarks]
were a principal basis for the court’s choice of sentence” (cleaned up)).
Because he has not shown a reasonable probability that but for the alleged
error, his sentence would have been lower, Harrell’s argument fails.
B.
Harrell also argues that his sentence is substantively unreasonable. We review
such challenges under “a deferential abuse-of-discretion standard.” United States v.
Manning, 738 F.3d 937, 947 (8th Cir. 2014). A district court abuses its discretion
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. Stong, 773 F.3d
920, 926 (8th Cir. 2014). Under this standard, our review is “narrow and deferential.”
United States v. Feemster, 572 F.3d 455, 464 (8th Cir. 2009) (en banc) (quoting
United States v. Gardellini, 545 F.3d 1089, 1090 (D.C. Cir. 2008)).
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In determining an appropriate sentence, a district court must consider all of the
factors in 18 U.S.C. § 3553(a), Gall v. United States, 552 U.S. 38, 49-50 (2007), but
it retains “‘wide latitude’ to weigh the § 3553(a) factors in each case and to assign
some factors greater weight than others.” United States v. Johnson, 916 F.3d 701,
703 (8th Cir. 2019) (quoting United States v. Bridges, 569 F.3d 374, 379 (8th Cir.
2009)). Moreover, we do not require that a district court “categorically rehearse each
of the section 3553(a) factors on the record when it imposes a sentence as long as it
is clear that they were considered.” United States v. Dieken, 432 F.3d 906, 909 (8th
Cir. 2006); see also United States v. Nguyen, 829 F.3d 907, 925 (8th Cir. 2016)
(finding the district court’s explanation that “it considered the PSR, the mitigating
factors presented by Nguyen,” and the other § 3553(a) factors sufficient).
Harrell argues that the district court did not give adequate consideration to his
mental health history and his considerable post-offense rehabilitation efforts. The
district court heard substantial evidence from Harrell on both of these mitigating
circumstances. When explaining its sentence, the court acknowledged the evidence
presented, saying it had “considered [Harrell’s] mental health history, his treatment,
his post-offense efforts at rehabilitation, [and] his work history.” Harrell would give
these mitigating factors greater weight, and understandably so. But the fact that the
district court weighed these factors differently, and then imposed a bottom-of-the-
Guidelines range sentence, does not mean it abused its discretion.
III.
We affirm the judgment of the district court.
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