United States v. Boelter

• Decision Date: 30 November 2015
• Docket Number: No. 15–1331.,15–1331.
• Citation: 806 F.3d 1134
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Donta BOELTER, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

806 F.3d 1134

UNITED STATES of America, Plaintiff–Appellee

v.Donta BOELTER, Defendant–Appellant.

No. 15–1331.

United States Court of Appeals, Eighth Circuit.

Submitted: Nov. 16, 2015.

Filed: Nov. 30, 2015.

John C. Vanderslice, Assistant Federal Public Defender, Lincoln, NE, for appellant.

Bruce Gillan, Assistant U.S. Attorney, Lincoln, NE, for appellee.

[Published]

PER CURIAM.

Donta Boelter appeals the 24–month sentence he received following the revocation of his supervised release. Boelter contends the sentence is substantively unreasonable because it is greater than necessary to achieve the purposes of 18 U.S.C. § 3553(a). Because we conclude Boelter's sentence was substantively reasonable, we affirm.¹

On January 29, 2010, Boelter pled guilty to one count of retaliating against a witness, in violation of 18 U.S.C. § 1513(b)(1). Boelter's calculated Sentencing Guidelines range was 30–37 months. At his sentencing hearing on September 7, 2011, the district court²varied downward and sentenced Boelter to a term of time served,³followed by a 3–year term of supervised release. Boelter began his supervised release on September 7, 2011. His term of supervised release was set to expire on September 6, 2014.

On May 14, 2014, a petition to revoke Boelter's supervised release was filed. The petition alleged Boelter had not worked since September 2013, had tested presumptively positive for the use of marijuana on eight occasions between August 29, 2013, and March 26, 2014, was found at a residence where another individual was cited for possession of marijuana and drug paraphernalia, and had failed to complete his 100 hours of community service. During a December 2, 2014, revocation of supervised release hearing, Boelter admitted to using marijuana on eight occasions between August 29, 2013, and March 26, 2014. The court granted Boelter's oral motion to continue the disposition hearing until March 3, 2015.⁴

On December 7, 2014, Boelter was arrested in Kearney, Nebraska, and charged with trespassing, disturbing the peace, and possessing marijuana. A second petition to revoke supervised release was filed on December 10, 2014. The alleged violations in this petition included his December 7, 2014, arrest, a November 19, 2014, citation for possession of marijuana and child abuse/neglect, lying to his probation officer about where he was residing, and failing to notify his probation officer prior to moving to a new residence.

The March 3, 2015, hearing was rescheduled for January 29, 2015. Because the state charges remained pending, Boelter did not admit any of the violations alleged in the second petition. At the court's request, the government called Boelter's Probation Officer, Michelle McNamara, to testify about the December 7 incident in Kearney. On cross-examination, McNamara also confirmed Boelter successfully completed community service and substance abuse treatment, but testified Boelter was unemployed for much of the previous two-year period.

All of Boelter's alleged violations were Grade C violations. With a criminal history category I, Boelter's Sentencing Guidelines range was 3–9 months. The maximum prison term and maximum term of supervised release that could be reimposed were each 60 months. The probation office recommended a sentence of 24 months imprisonment with no supervision to follow. Boelter requested a sentence of one year and a day, with no supervision to follow. The district court initially stated it was inclined to sentence Boelter to a prison term of 30 months, but ultimately sentenced Boelter to a prison term of 24 months with no supervision to follow.⁵Boelter timely appealed.

We review the substantive reasonableness of a district court's sentence on revocation of supervised release under “the same reasonableness standard that applies to initial sentencing proceedings.” United States v. Growden,663 F.3d 982, 984 (8th Cir.2011)(quotation omitted). A sentence is substantively unreasonable “if the district court fails to consider a relevant factor that should have...