United States v. Gant

• Decision Date: 21 December 2011
• Docket Number: No. 11–2060.,11–2060.
• Citation: 663 F.3d 1023
• Parties: UNITED STATES of America, Appellee, v. Shawn GANT, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

663 F.3d 1023

UNITED STATES of America, Appellee,

v.Shawn GANT, Appellant.

No. 11–2060.

United States Court of Appeals, Eighth Circuit.

Submitted: Oct. 21, 2011.Filed: Dec. 21, 2011.

John P. Messina, AFPD, Des Moines, IA, for appellant.

Teresa Baumann, AUSA, Cedar Rapids, IA, for appellee.

Before RILEY, Chief Judge, SHEPHERD, Circuit Judge, and WEBBER, ¹ District Judge.WEBBER, District Judge.

Shawn Gant pleaded guilty to one count of willfully making a telephone threat to kill, injure, and intimidate another individual and to damage and destroy a building by means of a fire or explosive in violation of 18 U.S.C. § 844(e). The district court ² sentenced him to 120–months imprisonment to run consecutively to an unrelated and undischarged term of imprisonment imposed in Fayette County, Iowa, followed by a three-year term of supervised release.

Gant now appeals. He asserts that at sentencing, the district court procedurally erred by considering exhibits that describe fires and an assault to substantiate an upward departure based on United States Sentencing Guideline § 4A1.3, “Departures Based on Inadequacy of Criminal History Category.” He also asserts that his 120–month sentence is substantively unreasonable. We affirm.

I. Background

From approximately 9:00 p.m. on June 8, 2010, to approximately 2:00 a.m. on June 9, 2010, Gant sent fourteen cellular telephone text messages to his ex-girlfriend. The text messages made arson-related threats including: “[your new boyfriend] will burn”; “There will b a fire indee 2nite”; “just gotta wait 4 people 2 go 2 sleep”; and, “Thats fine after I burn [your new boyfriend] i will kill my self. Just waitn 4 u 2 leave.” ³ On June 16, 2010, Gant sent a text message to his ex-girlfriend, “Do you know I was in your house Saturday night?” Another message from that day stated, “Place very easy to get in.”

On June 17, 2010, employees of Pancho's Mexican–American Restaurant reported to police that Gant had been calling the restaurant numerous times for several days looking for his ex-girlfriend. On that day, when the person who answered the phone instructed Gant that his ex-girlfriend was not there, Gant stated “I'm done f–––ing around. I'll just blow it up.”

On July 13, 2010, a federal grand jury returned a two-count indictment against Gant, charging him in Count 1 with using an instrument of interstate commerce, that is, a telephone, to willfully make a threat to kill, injure, and intimidate another individual and to damage and destroy a building by means of a fire or an explosive in violation of 18 U.S.C. § 844(e). Count 2 charged Gant with using an instrument of interstate commerce, that is, a telephone, to willfully make a threat to damage and destroy a building by means of a fire or an explosive device in violation of 18 U.S.C. § 844(e).

Gant entered into a plea agreement in which the United States agreed to dismiss Count 2 of the indictment in exchange for Gant pleading guilty to Count 1. In the plea agreement, the parties stipulated to a Base Offense Level of 12 and a two-level increase pursuant to U.S.S.G. § 2A6.1(b)(3) because the offense involved the violation of a court protective order. On April 28, 2011, Gant pleaded guilty to Count 1 of the indictment and Count 2 was dismissed.

After Gant pleaded guilty, the supplied presentence investigation report (“PSR”) suggested a two-level increase because the offense involved more than two threats, U.S.S.G. § 2A6.1(b)(2)(A).⁴ The PSR also suggested a two-level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a) and, upon motion of the United States, an additional one-level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(b).

The PSR also detailed Gant's long criminal history, which included an Iowa state conviction for one count of second-degree arson, one count of first-degree arson, a later guilty plea to one count of reckless use of fire, numerous public intoxication citations, and thefts. In the PSR, Gant's total offense level was 13 and his criminal history was Category VI. The PSR concluded that Gant's Guideline range of imprisonment was 33 to 41 months, but it noted that under 18 U.S.C. § 844(e), Gant could receive up to ten-years imprisonment. It also recommended that the sentence imposed should run consecutively to the undischarged term of state imprisonment. Gant objected to portions of the PSR.

At the sentencing hearing, the United States moved for an upward departure to the statutory maximum of 120–months imprisonment based upon dismissed and uncharged conduct pursuant to U.S.S.G. § 5K2.21, and understated criminal history pursuant to U.S.S.G. § 4A1.3(a)(1). The United States submitted thirteen exhibits to support its argument for an upward departure and variance: ⁵

• Exhibit 1, a Fayette County, Iowa, Sheriff's Office Dispatch Sheet dated March, 2, 1991, states that Mike Gant, Gant's father, reported a car fire at his residence.

• Exhibit 2, Fayette County, Iowa, Sheriff's Office Dispatch Sheet dated March 9, 1991, states that a neighbor reported a orange glow by Mike Gant's car outside his residence.

• Exhibit 3, a Department of Public Safety Field Investigation Report, details a house fire at the Gant residence on September 7, 1991. The report states that the fire destroyed much of the home, its furnishings, and garage. Gant and his brother were in the home at the time the fire began in the attached garage. The fire was ruled accidental.

• Exhibit 4, a volunteer fire department report sheet dated June 13, 1994, lists Shawn Gant reporting a car fire behind the post office.

• Exhibit 5, an Iowa Department of Public Safety Field Investigation Report dated August 17, 1994, reports an accidental fire at a two-story brick building that has three apartments on the second floor above a business. Gant was at the building when a fire began in a pile of clothing on a bedroom floor.

• Exhibit 6, an Iowa Department of Public Safety Field Investigation Report dated December 14, 1994, describes an accidental fire at a mobile home occupied by Gant. Gant was at the mobile home alone when the fire was discovered.

• Exhibit 7, a case report from the Winneshiek County Sheriff dated November 7, 1995, states that a fire destroyed a barn at Mike Gant's residence.

• Exhibit 8, an Iowa Department of Public Safety Field Investigation Report dated March 15, 1996, describes an accidental fire at a dairy barn. An attached Sheriff's report states that the arson was suspected, and that Gant was observed at the scene watching the fire from his car. Gant's car was searched and no evidence linking Gant to the fire was found.

• Exhibit 9, a Decorah Volunteer Fire Department report dated January 4, 2002, describes a car fire in the Wal–Mart parking lot. Gant's name is listed on the report.

• Exhibit 10, a Decorah Volunteer Fire Department report dated January 15, 2002, lists “Shawn Gant” and reports a car fire.

• Exhibit 11, a Fire Incident report dated June 23, 2002, describes a vehicle fire in Super 8 Motel parking lot. The vehicle was owned by Service Master Janitorial and “the operator of the [vehicle] was Shawn Gant.” The back of the vehicle contained a lawn mower, a weed trimmer, and a gas can. The report states Gant was drinking beer while talking with the fire fighters and he appeared intoxicated. The vehicle was completely destroyed and the cause of the fire was “undetermined.”

• Exhibit 13, an Iowa Incident Report from the Independence, Iowa, Police Department dated January 5, 2009, reports a domestic assault between Gant and his girlfriend. The report states that the girlfriend was the aggressor and had been drinking. The officer's investigation notes state that the officer was en route to the scene of a reported car fire outside of the residence when the dispatcher advised the officer that a domestic disturbance also had been reported at that residence. When the officer arrived, the car was engulfed in flames.

• Exhibit 14, an Iowa Department of Public Safety Field Investigation Report dated September 28, 2009, describes a fire at a residence rented by Gant and others. The cause of the fire was determined to be accidental and caused by “an electrical anomaly.”

Regarding the exhibits, Gant conceded that exhibits 6, 9, 10, and 11 corroborated admissions contained in the PSR, which included “starting other fires, including lighting two of his cars on fire, lighting a mobile home on fire, and lighting a beanbag chair on fire in an apartment[.]” He challenged, however, the reliability of the other exhibits. The district court received the exhibits “for whatever relevance they have[.]”

In addition to challenging the reliability of the sentencing exhibits, Gant also argued for leniency and stated that his substance abuse and depression should be considered as strong mitigating factors to lessen his term of imprisonment.

The district court issued a written sentencing memorandum detailing its rationale for departing upward or, alternatively, varying upward. The district court found that an upward departure under U.S.S.G. § 4A1.3 was warranted because the evidence before it demonstrated that Gant's criminal history category did not accurately represent the seriousness of his criminal past and his likely recidivism. The district court also found that an upward departure under U.S.S.G. § 5K2.21 was appropriate because of the seriousness of the conduct underlying the dismissed charge. Alternatively, the district court found that an upward variance was necessary for many reasons including to protect the public from Gant, “a violent person who has an apparent proclivity to set fires.”

The district court imposed the statutory maximum of 120–months imprisonment, with the sentence to run consecutively to the undischarged term of imprisonment imposed by Iowa state court. In addition, the district court ordered three years of supervised release and a special assessment of $100. Lastly,...