U.S. v. Likens

• Decision Date: 22 September 2006
• Docket Number: No. 05-3917.,05-3917.
• Citation: 464 F.3d 823
• Parties: UNITED STATES of America, Appellant, v. Morris K. LIKENS, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

464 F.3d 823

UNITED STATES of America, Appellant, v. Morris K. LIKENS, Appellee.

No. 05-3917.

United States Court of Appeals, Eighth Circuit.

Submitted: May 16, 2006.

Filed: September 22, 2006.

Matthew J. Witaker, U.S. Attorney, Rock Island, IL (Clifford R. Cronk, III, Asst. U.S. Attorney, on the brief), for Appellant.

David R. Treimer, Davenport, IA, for Appellee.

Morris K. Likens, Summerfield, FL, pro se.

Before WOLLMAN, BRIGHT, and RILEY, Circuit Judges.

WOLLMAN, Circuit Judge.

Morris K. Likens was convicted on his guilty plea of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1), and of being a drug user in possession of a firearm, in violation of 18 U.S.C. § 922(g)(3), and was sentenced to three years' probation. The government appeals the sentence, arguing that it is unreasonable. We vacate the sentence and remand to the district court for resentencing.

I.

Likens, a Florida resident, traveled to Davenport, Iowa, to attend a high school reunion. Police officers stopped him for driving without wearing a seatbelt and arrested him when they observed marijuana inside his truck. The officers searched the truck and found a .45 caliber pistol, a loaded magazine, and several rounds of ammunition. Likens admitted to the officers that he owned the pistol and that he had transported it from Florida to Iowa. He also admitted that he had smoked marijuana while the pistol was in his possession.

Likens had previously been convicted of several drug offenses. In 1991 and 1993, he was convicted for purchasing crack cocaine from a police officer. He was fined and served probation sentences for both convictions. In 2000, police officers found crack in Likens's car, and he was fined and sentenced to five months in jail. Each of these convictions was for a felony offense.

Following the district court's denial of his motion to suppress, Likens pleaded guilty to the charges against him. The presentence report (PSR) determined Likens's base offense level to be 14 and his criminal history score to be II. It recommended a two-level enhancement for obstruction of justice because of Likens's false testimony at the suppression hearing. The district court found that Likens had testified falsely and assessed the enhancement. The district court awarded a three-level reduction for acceptance of responsibility, resulting in a guideline range of fifteen to twenty-one months' imprisonment.

At the sentencing hearing, the district court discussed a number of sentencing factors. Discussing the nature and circumstances of the offense, the district court noted that "no violence was involved in the offense conduct." Sent. Tr. at 16. In examining the history and characteristics of the defendant, the district court observed that Likens had been married for thirty-one years, had a supportive family, and was suffering from diabetes, heart disease, and addictions to alcohol and drugs. In examining the need for the sentence imposed, the district court opined that "[t]he interests of protecting the public, providing just punishment for the offense, lowering the risk of recidivism and affording adequate deterrence" would all be met with a sentence of probation. Id. at 18. The court continued:

The Defendant does not pose a threat of violence to society nor to those nearest to him. . . . The real intent of the statute prohibiting felons from being in possession of firearms is only to protect society.

The conduct in this case was entirely linked to [Likens's] substance abuse and mental health problems. Indeed, sending a person with congestive heart failure, a close family support system, and in his fifties would promote not respect, but likely derision for the law.

Id.

The district court then sentenced Likens to three years' probation, conditioned upon his participation in a substance abuse treatment and testing program.

II.

When there is no dispute on appeal about the applicable guideline range, we examine whether the sentence imposed is "reasonable" in light of the factors articulated in 18 U.S.C. § 3553(a). United States v. Haack, 403 F.3d 997, 1003 (8th Cir.2005). We review the district court's decision for abuse of discretion. United States v. Dalton, 404 F.3d 1029, 1032 (8th Cir.2005). A discretionary sentencing ruling may be unreasonable if a sentencing court fails to consider a relevant factor that should have received significant weight, gives significant weight to an improper or irrelevant factor, or commits a clear error of judgment by arriving at a sentence outside the limited range of choice dictated by the facts of the case. Haack, 403 F.3d at 1004.

The guideline range, though advisory, is presumed to be reasonable. United States v. Lincoln, 413 F.3d 716, 717 (8th Cir.2005). Sentences deviating from the guideline range can be reasonable so long as the judge offers appropriate justification under the factors specified in § 3553(a). United States v. Claiborne, 439 F.3d 479, 481 (8th Cir.2006). The further the district court varies from the presumptively reasonable guideline range, the more compelling the justification based on those factors must be. United States v. McMannus, 436 F.3d 871, 874 (8th Cir. 2006). An extraordinary reduction must be supported by extraordinary circumstances. Dalton, 404 F.3d at 1033.

The probationary sentence imposed in this case represents a one-hundred percent downward variance from the bottom of the applicable advisory guideline range. United States v. Gall, 446 F.3d 884, 889 (8th Cir.2006). Our review of the record and the district court's analysis of the § 3553(a) factors does not reveal the existence of the type of extraordinary circumstances necessary to justify such a reduction. Instead, it appears that the district court failed to consider important factors, gave inappropriate weight to irrelevant factors, and committed clear errors of judgment with respect to some relevant factors.

First, it appears that the district court failed to consider the need to avoid unwarranted sentencing disparities. "The sentencing guidelines are indeed no longer mandatory, but they continue to be guideposts that must be respected, lest we see a return to the unwarranted sentencing disparities that resulted in the adoption of the guidelines themselves." United States v. Bryant, 446 F.3d 1317, 1320 (8th Cir.2006). The record does not reflect any consideration by the district court of this important factor.

The district court also gave inappropriate weight to irrelevant or insignificant factors. The district court appeared to place inordinate weight on Likens's age and substance abuse problems. Age and drug addiction or abuse are not ordinarily extraordinary circumstances. United States v. Lee, 454 F.3d 836, 839 (8th Cir. 2006). While these and other factors cited by the district court might justify some variance from the guideline range, they are not sufficient to justify a sentence of probation in this case.

Finally, the district court erred in its consideration of other relevant factors in that it unduly minimized the seriousness of Likens's conduct. The structure of the Gun Control Act of 1968, which criminalized the conduct committed here, seeks to curb crime and protect the...