United States v. Kirk Flying Horse, 072021 FED8, 20-2832

Docket Nº20-2832
Opinion JudgePER CURIAM.
Party NameUnited States of America Plaintiff- Appellee v. Kirk Flying Horse Defendant-Appellant
Judge PanelBefore LOKEN, KELLY, and ERICKSON, Circuit Judges.
Case DateJuly 20, 2021
CourtUnited States Courts of Appeals, United States Court of Appeals (8th Circuit)

United States of America Plaintiff- Appellee

v.

Kirk Flying Horse Defendant-Appellant

No. 20-2832

United States Court of Appeals, Eighth Circuit

July 20, 2021

Submitted: June 18, 2021

Appeal from United States District Court for the District of South Dakota - Northern

Before LOKEN, KELLY, and ERICKSON, Circuit Judges.

PER CURIAM.

In 2015, Kirk Flying Horse pleaded guilty to assaulting, resisting, and impeding a federal officer. See 18 U.S.C. § 111(a), (b). The district court[1] sentenced him to 30 months' imprisonment and a three-year term of supervised release. Flying Horse completed his initial term of imprisonment but has struggled to comply with the conditions of his supervised release because of his alcohol addiction.

Flying Horse began serving his first term of supervised release on November 1, 2017. The district court revoked his supervised release on June 24, 2019, after Flying Horse admitted to consuming alcoholic beverages, possessing marijuana, and failing to attend cognitive behavioral treatment. The court sentenced him to seven months' imprisonment and a 29-month term of supervised release.

The new term of supervised release began on September 16, 2019. Nine months into that term, Flying Horse's probation officer petitioned the district court to again revoke his supervised release because of a series of alleged violations. On August 17, 2020, Flying Horse admitted to consuming alcohol and using marijuana and methamphetamine, and the district court revoked his supervised release. The advisory Guidelines range for the revocation sentence was 6 to 12 months' imprisonment. See U.S. Sent'g Comm'n, Guidelines Manual, § 7B1.4 (2018). But the district court imposed the statutory maximum of 24 months' imprisonment, see 18 U.S.C. § 3583(e)(3), with no term of supervised release to follow. Flying Horse appeals, asserting that this sentence was substantively unreasonable.

We review the substantive reasonableness of a district court's revocation sentence under the same abuse of discretion standard that applies to initial sentencing proceedings. See United States v. Growden, 663 F.3d 982, 984 (8th Cir. 2011). A district court abuses its discretion if 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...

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