United States of America v. Jonathan E. Brown

United States Court of Appeals
For the Eighth Circuit
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No. 20-2847
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Jonathan E. Brown
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: June 14, 2021
Filed: August 24, 2021
[Unpublished]
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Before LOKEN, WOLLMAN, and ERICKSON, Circuit Judges.
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PER CURIAM.
While on probation for another offense in August 2018, Jonathan Brown was
found to be in possession of a firearm and ultimately pleaded guilty to being a felon
in possession of a firearm. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). Brown’s previous
convictions included involuntary manslaughter in the first degree, armed criminal

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action, and assault. The district court1 sentenced him to 46 months’ imprisonment.
Brown appeals, arguing that his sentence is procedurally flawed and substantively
unreasonable. We affirm.
The presentence investigation report (PSR) assigned Brown a total offense
level of 12 and a criminal history category of IV and calculated an advisory
sentencing range of 21 to 27 months’ imprisonment under the United States
Sentencing Guidelines (U.S.S.G. or Guidelines). The PSR also included facts from
an incident on the morning of January 1, 2019, when officers responded to a
residence in Kansas City, Missouri, after receiving twelve separate indications of
shots having been fired at the residence the night before. Brown answered the door,
but refused to speak with the officers, telling them that he was going to see if his
father was home, shutting the door, and not returning. The officers recovered a total
of 360 spent shell casings and 26 live rounds of ammunition from the residence’s rear
porch and driveway.
The district court adopted the PSR’s Guidelines calculation at sentencing. It
discussed the facts set forth in the PSR, including those regarding the New Year’s
Eve incident, recalling that deaths had occurred “because of other people discharging
firearms in the air on New Year’s Eve.” After considering the 18 U.S.C. § 3553(a)
sentencing factors, the district court varied upward by 19 months and sentenced
Brown “based on the need to protect the public, based on the need for deterrence,
based on the fact that [Brown had] been honest with everyone, and . . . told the truth.”
We “review a sentence for significant procedural error and then, if necessary,
for substantive reasonableness.” United States v. David, 682 F.3d 1074, 1076 (8th
Cir. 2012). When reviewing for significant procedural error, “we review the district
1The Honorable Greg Kays, United States District Judge for the Western
District of Missouri.
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court’s application of the guidelines de novo and its factual findings for clear error.”
United States v. Green, 691 F.3d 960, 966 (8th Cir. 2012). A district court commits
procedural error when it fails “to adequately explain the chosen sentence—including
an explanation for any deviation from the Guidelines range.” United States v.
Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (quoting Gall v. United States,
552 U.S. 38, 51 (2007)) (adequate explanation “allow[s] for meaningful appellate
review and [promotes] the perception of fair sentencing”).
Brown suggests that the district court inadequately explained his sentence and
the upward variance. We disagree. The district court correctly calculated Brown’s
sentencing range after holding that Brown’s involuntary manslaughter and armed
criminal action convictions did not qualify as crimes of violence for the purposes of
U.S.S.G. § 2K2.1. See, e.g., United States v. Schneider, 905 F.3d 1088, 1091–92 (8th
Cir. 2018) (under the categorical approach, crimes which can result from recklessness
are not a crime of violence). The district court then discussed “the good and the not
so good” in Brown’s case, which arguably provided “substantial insight into the
reasons for its determination.” See Feemster, 572 F.3d at 463 (internal quotation
marks and citation omitted). The district court acknowledged Brown’s community
support, his acceptance of responsibility, his cooperation with the court system and
his attorney, and his good behavior while in custody awaiting sentencing. It then
discussed Brown’s criminal history and the facts set forth in the PSR. Moreover, it
expressly recognized that the sentencing range was not mandatory and stated that it
had determined the sentence after considering the statutory factors. Because it is
“clear from the record that the district court actually considered the § 3553(a)
factors,” id. at 461 (citation omitted), we conclude that it adequately explained the
reasons for the upward variance it was imposing.
In the absence of procedural error, we review the sentence for substantive
reasonableness, applying a deferential abuse-of-discretion standard. Gall, 552 U.S.
at 51. The district court abuses its discretion and imposes an unreasonable sentence
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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.” David, 682 F.3d at 1077. “When a district court varies from the
[G]uidelines range based upon its application of § 3553(a), we consider both whether
the district court’s decision to grant a variance is reasonable and whether the extent
of the variance is reasonable.” United States v. Garnette, 474 F.3d 1057, 1060 (8th
Cir. 2007).
Brown argues that his sentence is substantively unreasonable because the
district court varied upward primarily based on a factor—his criminal history—that
was already accounted for in the Guidelines calculation. Such a factor “can
nevertheless form the basis of a variance.” David, 682 F.3d at 1077. Moreover, “[a]
district court is not prohibited from determining that the weight the Guidelines
assigned to a particular factor was insufficient.” United States v. Donahue, 959 F.3d
864, 867 (8th Cir. 2020) (internal quotation marks and citation omitted).
Although none of Brown’s prior convictions was a crime of violence within the
meaning of U.S.S.G. § 2K2.1(a), the district court nevertheless found Brown’s
criminal history “concerning.” As set forth in the PSR, Brown’s involuntary
manslaughter conviction resulted from his accidental discharge of a firearm, and his
assault conviction resulted from his “choking [a woman] with open hands.” The
district court recognized that Brown did not have “a lot of criminal history,” but it
characterized his previous convictions as “serious.” That Brown was present at a
residence shortly after “dangerous behavior” apparently took place on New Year’s
Eve was also a matter of concern to the district court. The record thus indicates that
the district court did not vary upward merely because of Brown’s prior convictions.
Rather, the variance was based on its determination that the sentencing range did not
properly take into account the gravity of the facts set forth in the PSR or the
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seriousness of Brown’s criminal history. See 18 U.S.C. § 3553(a)(1) (“the history and
characteristics of the defendant” is a sentencing factor to be considered).
We reject Brown’s implication that the district court improperly relied on the
New Year’s Eve incident to vary upward. As noted above, the district court discussed
the incident at sentencing, stating “the facts in the PSR are concerning.” The district
court expressly stated that it was not finding that Brown had discharged a weapon,
but noted that Brown’s presence “around such a tremendous amount of [spent]
ammunition . . . the day after, . . . ma[de] people wonder.” The district court did not
abuse its discretion in discussing the incident, however, because its details were
described in the PSR and were not objected to by Brown. See United States v. Boyd,
956 F.3d 988, 991–92 (8th Cir. 2020).
We “must give due deference to the district court’s decision that the § 3553(a)
factors, on a whole, justify the extent of the variance.” Feemster, 572 F.3d at 461–62
(quoting Gall, 552 U.S. at 51). The district court determined that a 19-month upward
variance was “sufficient but not greater than necessary” to adequately deter criminal
conduct and to protect the public. See 18 U.S.C. § 3553(a)(2)(B)–(C). We find no
abuse of discretion in that determination. See Feemster, 572 F.3d at 462 (“Just
because we ‘might reasonably have concluded that a different sentence was
appropriate is insufficient to justify reversal of the district court.’” (quoting Gall, 552
U.S. at 51)).
The sentence is affirmed.
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