United States of America v. David Clark

St. Louis, MO - Criminal defense lawyer represented defendant with a one count of bank robbery charge.

Following a bench trial in 2016, Clark was convicted of one count of bank

robbery in violation of 18 U.S.C. § 2113(a) and sentenced to 60 months

imprisonment and 3 years of supervised release.2

Clark began his first term of

supervised release on January 9, 2019. Shortly thereafter, on April 24, 2019, Clark

stipulated to violating seven conditions of his release. The district court revoked

Clark's supervised release and sentenced him to 6 months imprisonment with 24

months of supervised release to follow.3



Prior to his release from his second term of imprisonment, the Probation

Office learned that Clark did not have a viable home plan. As a result, Clark signed

a waiver to modify his supervised release conditions to include participation in the

Residential Reentry Center (RCC) Program for up to 120 days. Clark began his

second term of supervised release on Friday, August 30, 2019, and was instructed to

report to the Probation Office upon his release from custody. Clark failed to report

to the Probation Office until Tuesday, September 3, 2019, and his whereabouts over

that weekend were unknown. On September 4, 2019, Clark was accepted into the

RRC Program, and he reported as instructed.

Beginning on September 24, 2019, Clark refused to comply with various

instructions of the RCC Program staff. The staff noted that Clark appeared to

occasionally be under the influence of a controlled substance. Specifically, Clark

fell asleep standing up and exhibited slurred speech and difficulty walking. The staff

further detected the smell of what they believed to be "K2,” a synthetic marijuana.

Upon a pat-down search, Clark refused to relinquish an item that he removed from

2

This Court affirmed Clark's conviction in United States v. Clark, 695 F.

App'x 999 (8th Cir. 2017) (per curiam).

3

This Court affirmed Clark's revocation and sentence in United States v.

Clark, 775 F. App'x 829 (8th Cir. 2019) (per curiam).

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his pocket and subsequently refused to complete a urinalysis test. The staff also

noted that Clark appeared to take something orally after refusing the urinalysis.

Based on these incidents, Clark was discharged on September 27, 2019 before

completing the program, and was instructed to immediately report to the Probation

Office. Clark failed to report again,4 and the Probation Office sought a violator's

warrant. Clark's whereabouts were unknown until November 3, 2019, when he was

arrested pursuant to that warrant.

At the revocation hearing, the district court determined that Clark had violated

four conditions of his supervised release: (1) failing to report to the Probation Office

within 72 hours of his release from custody; (2) failing to follow the instructions of

the Probation Office related to the conditions of supervision; (3) failing to

successfully participate in a substance abuse testing program; and (4) failing to

satisfactorily participate in a RRC Program. The district court found that Clark's

violations were Grade C violations, pursuant to the United States Sentencing

Guidelines § 7B1.1, which, when cross-referenced with Clark's criminal history

category of IV, resulted in a range of 6 to 12 months imprisonment. See USSG

§ 7B1.4. Clark requested a downward variance of 2 to 3 months imprisonment

followed by sanctions, such as house arrest. The government requested an upward

variance of 24 months imprisonment with no supervised release to follow, citing

Clark's history of noncompliance during supervised release. The district court

ultimately sentenced Clark to 24 months imprisonment with no supervised release

to follow. In crafting the sentence, the district court cited the factors set forth in 18

U.S.C. § 3583,5 Clark's unwillingness to comply with supervision, and the need to

protect the public.

4

Clark did attempt to call the Probation Office on September 30 and October

1, 2019; however, he called from a number listed as "unknown” and failed to provide

a call back number.

5

Section 3583 incorporates a subset of the familiar § 3553(a) factors by

reference. Specifically, the district court may consider only 18 U.S.C. § 3553(a)(1),

(a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7) in its determination of

revocation. 18 U.S.C. § 3583(e).

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II.

Clark raises multiple challenges to his revocation sentence on appeal. "[W]e

review the district court's revocation sentencing decision 'under the same

"deferential-abuse-of-discretion” standard that applies to initial sentencing

proceedings.'” United States v. Johnson, 827 F.3d 740, 744 (8th Cir. 2016) (citation

omitted). "Our analysis is performed in two steps: 'first, [we review] for significant

procedural error; and if there is none, for substantive reasonableness.'” United

States v. Hall, 931 F.3d 694, 696 (8th Cir. 2019) (alteration in original) (citation

omitted).

Procedural errors include "failing to calculate (or improperly calculating) the

Guidelines range, treating the Guidelines as mandatory, failing to consider the

§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to

adequately explain the chosen sentence—including an explanation for any deviation

from the Guidelines range.” Gall v. United States, 552 U.S. 38, 51 (2007); see also

United States v. Miller, 557 F.3d 910, 916 (8th Cir. 2009) (applying the Gall

framework in the revocation context). Though he does not frame his argument as

such, Clark's first claim—that the district court failed to adequately explain its

upward variance—is procedural in nature. However, if, as here, "an alleged

procedural error was not raised in the district court, we review it for plain error.”

Hall, 931 F.3d at 696. Accordingly, Clark must show: "(1) there was error, (2) the

error was plain, and (3) the error affected his substantial rights.” Miller, 557 F.3d at

916. "In explaining the sentence[,] the district court need only 'set forth enough to

satisfy the appellate court that [it] has considered the parties' arguments and has a

reasoned basis for exercising [its] own legal decisionmaking authority.'” United

States v. DeMarrias, 895 F.3d 570, 573 (8th Cir. 2018) (alterations in original)

(citation omitted). Further, when revoking the defendant's supervised release and

imposing a new sentence, the district court must consider the relevant § 3553(a)

factors incorporated into § 3583(e). See Johnson, 827 F.3d at 745. "The [district]

court need not, however, 'mechanically list every § 3553(a) consideration.' 'If it is

evident the district court was aware of the relevant factors when imposing the

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sentence, we may affirm the sentence without specific findings on each factor.'”

DeMarrias, 895 F.3d at 573 (citations omitted).

Here, we are satisfied that the district court adequately explained its reasoning

for Clark's sentence, see id., especially in light of our plain error review. The district

court heard arguments from both parties and permitted Clark to speak. Then, the

district court referenced Clark's history of noncompliance with the conditions of his

supervised release. "[W]e have repeatedly stated that variances are appropriate

based on repeated violations of supervised release . . . .” Hall, 931 F.3d at 698. The

district court also mentioned the need to protect the public and the factors set out in

18 U.S.C. § 3583. Clark contends that this explanation was merely conclusory.

However, having presided over the entirety of Clark's proceedings, the district court

was well aware of Clark's criminal history and supervised release violations. See

United States v. Torres-Ojeda, 829 F.3d 1027, 1029-30 (8th Cir. 2016) ("Sometimes

a judicial [ruling] responds to every argument; sometimes it does not; sometimes a

judge . . . rel[ies] upon context and the parties' prior arguments to make the reasons

clear.” (alterations in original) (citation omitted)). Therefore, we find that the district

court did not err, much less plainly err, in explaining the basis for its upward

variance.



Next, Clark alleges that the district court committed a Tapia6 error by

considering Clark's need for rehabilitation when crafting his sentence; however,

because Clark failed to raise this issue before the district court, we again review his

claim for plain error. See United States v. Holdsworth, 830 F.3d 779, 783-85 (8th

Cir. 2016) (reviewing a forfeited Tapia claim for plain error). "[D]istrict courts may

not 'impose or lengthen a prison sentence to enable an offender to complete a

treatment program or otherwise to promote rehabilitation.'” Id. at 784 (citation

omitted). However, "[w]e have stated that no plain Tapia error occurs where a

district court 'never expresse[s] an intention to lengthen [a defendant's] sentence for

rehabilitative purposes.'” United States v. Werlein¸ 664 F.3d 1143, 1147 (8th Cir.

6

Tapia v. United States, 564 U.S. 319 (2011).

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2011) (per curiam) (second and third alterations in original) (citation omitted).

"Many potential Tapia errors will not require remand under plain error review.”

Holdsworth, 830 F.3d at 785 (citation omitted). Here, nothing in the record indicates

that the district court lengthened Clark's sentence for the purpose of guaranteeing

that he could participate in a drug-treatment program. As noted above, it is clear

that the district court based Clark's sentence primarily on his repeated

noncompliance with the conditions of his supervised release. The district court's

passing comments regarding rehabilitation constitute nothing more than

encouragement for Clark to work on his mental health while in custody. See id.

(finding that the district court did not commit a Tapia error when it merely noted the

treatment available to the defendant at the facility). Accordingly, we find that the

district court did not commit a Tapia error, much less a plain error.

Having found no procedural errors, we next consider Clark's claim that the

district court imposed a substantively unreasonable sentence.

A sentence is substantively unreasonable if the district court "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 judgment in

weighing those factors.” "We afford the court wide latitude to weigh

the § 3553(a) factors in each case and assign some factors greater

weight than others in determining an appropriate sentence.” "Just

because we might reasonably have concluded that a different sentence

was appropriate is insufficient to justify reversal of the district court.”

Thus, it is an "unusual case when we reverse a district court sentence—

whether within, above, or below the applicable Guidelines range—as

substantively unreasonable.”

DeMarrias, 895 F.3d at 573-74 (citations omitted).

First, Clark highlights that his sentence is an upward variance of 400% from

the bottom and 200% from the top of his Guidelines range. However, this Court has

"previously rejected this percentage-based argument, noting that deviations from the

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Guidelines range will always appear more extreme—in percentage terms—when the

range itself is low and concluding that the percentage of the variance is thus not

sufficient in and of itself to find a defendant's sentence substantively unreasonable.”

United States v. Trung Dang, 907 F.3d 561, 567 (8th Cir. 2018) (citation omitted);

see Gall, 552 U.S. at 47 ("We also reject the use of a rigid mathematical formula that

uses the percentage of a departure as the standard for determining the strength of the

justifications required for a specific sentence.”). Therefore, we find Clark's sentence

was not substantively unreasonable on this basis.

Second, Clark contends generally that the district court made a clear error of

judgment in weighing the relevant factors. Specifically, Clark argues that the district

court's reasoning is insufficient to justify a 24-month sentence. We disagree. We

noted above the district court's reasoning, and we have upheld similar upward

variances based in part on a defendant's repeated violation of the terms of his or her

supervised release. See, e.g., United States v. Kreitinger, 576 F.3d 500, 503-04 (8th

Cir. 2009). Accordingly, we find that the district court did not commit a clear error

of judgment in crafting Clark's sentence.

Third, Clark admits that upward variances in revocation sentences are

appropriate in some instances, but he contends that those instances arise only when

the defendant's supervised release violation is similar to the act for which he was

originally convicted. We have not restrained the application of upward variances to

such circumstances. Instead, we look to whether "the district court considered the

factors set forth in 18 U.S.C. § 3553(a), with reference to the individual

circumstances of [the defendant]'s case.” See United States v. Bear Robe, 521 F.3d

909, 911 (8th Cir. 2008). Here, the district court noted the factors set forth in 18

U.S.C. § 3583, which again incorporates the § 3553(a) factors relevant for revocation

purposes. See 18 U.S.C. § 3583(e). Therefore, we are satisfied that the district court

properly considered the relevant factors when varying upward.

Finally, Clark contends that significant upward variances for Grade C

violations erode the intentional gradation of supervised release violations and that

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such erosion renders meaningless the Supreme Court's mandate to "secure

nationwide consistency” in sentences. See Gall, 552 U.S. at 49. However, "[t]he

Guidelines are not the only consideration.” Id. The district court "must make an

individualized assessment based on the facts presented. If [the district court] decides

that an outside-Guidelines sentence is warranted, [it] must consider the extent of the

deviation and ensure that the justification is sufficiently compelling to support the

degree of the variance.” Id. at 50. Here, the district court began with the Guidelines

and then conducted an individualized assessment. The district court found that an

above-Guidelines sentence was warranted and justified its decision based on Clark's

repeated violations of supervised release, his history and characteristics, and the

need to protect the public. Having already found the district court's reasoning

sufficient, we find that Clark's sentence is not substantively unreasonable.

For the foregoing reasons, we affirm Clark’s sentence.