United States of America v. Steven Douglas Freno, Jr.

United States Court of Appeals
For the Eighth Circuit
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No. 23-3005
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United States of America
Plaintiff - Appellee
v.
Steven Douglas Freno, Jr.
Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: June 10, 2024
Filed: June 27, 2024
[Unpublished]
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Before COLLOTON, Chief Judge, ARNOLD and GRUENDER, Circuit Judges.
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PER CURIAM.
Steven Freno pleaded guilty to possession of a firearm by a prohibited person,
see 18 U.S.C. § 922(g)(1), (9), and possession with intent to distribute marijuana
mixture after having been convicted of a felony drug offense, see 21 U.S.C.
§ 841(a)(1), (b)(1)(D). With a total offense level of 21 and a criminal history
category of II, Freno’s initial advisory sentencing guidelines range was 41 to 51

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months of imprisonment. At sentencing, the district court1 departed upward because
it found that Freno’s “criminal history category substantially under-represents the
seriousness of his criminal history” and the “likelihood that he will commit other
crimes.” U.S.S.G. § 4A1.3(a)(1). The district court determined that Freno’s
criminal history most closely resembles that of a defendant with a criminal history
category of IV and used that category as a reference to determine the extent of an
appropriate upward departure. See id. § 4A1.3(a)(4)(A). The guidelines suggest 57
to 71 months of imprisonment for defendants with an offense level of 21 and a
criminal history category of IV. The district court also ruled in the alternative that
it would vary upward to the same degree based on Freno’s criminal history. The
district court then varied upward due to other aggravating circumstances and
sentenced Freno to 84 months in prison. Freno appeals.
Freno principally asserts that the district court improperly departed upward
under U.S.S.G. § 4A1.3. However, the district court explained that it was also
varying upward to the same extent based on Freno’s criminal history. See 18 U.S.C.
§ 3553(a)(1)-(2). In other words, “the departure and the variance were alternative,
rather than cumulative, bases” for Freno’s sentence. United States v. Grandon, 714
F.3d 1093, 1098 (8th Cir. 2013). Because we conclude below that the district court
did not abuse its discretion in deciding to vary upward, “any error in alternatively
imposing an upward departure would be harmless because the district court would
have imposed the same sentence absent the error.” Id. (internal quotation marks
omitted).
Freno argues that the district court abused its discretion in varying upward
based on the § 3553(a) factors. See United States v. McDaniels, 19 F.4th 1065, 1067
(8th Cir. 2021) (per curiam) (noting the standard of review). Here, the district court
explained its reasons for varying upward and determining Freno’s sentence.
Especially important to the district court were Freno’s thirty-three adult criminal
1 The Honorable C.J. Williams, United States District Judge for the Northern
District of Iowa.

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convictions. His criminal history includes three violent crimes and numerous
convictions involving drugs or guns, indicating Freno’s tendency “to commit crime
over and over again.” The district court also noted the presence of additional
“aggravating factors,” including Freno’s continued criminal conduct while under the
court’s supervision, his “violent[,] . . . intimidating[,] and traumatizing conduct” that
led to this prosecution, as well as his “repeated” lying to the police. Though Freno
urged the district court to give great weight to his claim to be “a hard working, non-
violent man” with “a supportive network of friends and family,” it does not appear
to us that the district court failed to consider a relevant and significant factor, gave
significant weight to an irrelevant or improper factor, or committed a clear error of
judgment in weighing the appropriate factors. See id.; see also United States v.
Nguyen, 829 F.3d 907, 926 (8th Cir. 2016) (“A district court does not abuse its
discretion simply because it weighs the relevant factors more heavily than the
defendant would prefer.” (internal quotation marks omitted)). Accordingly, we
discern no abuse of discretion.
Affirmed.
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