United States of America v. Thomas Jerel Grace

On December 6, 2015, Thomas Jerel Grace was driving down North Dakota

Highway 23 within the Fort Berthold Indian Reservation when he crossed into

oncoming traffic and crashed into the car of 18-year-old Dariann Tveter, who died at

the scene. Grace’s blood alcohol level was .211 percent.

Grace pled guilty to one count of involuntary manslaughter under 18 U.S.C.

§§ 1112 and 1153. At sentencing, the district court1 determined Grace had an offense

level of 19 and a criminal history category of I. As such, his advisory Guidelines

range was 30 to 37 months imprisonment. United States Sentencing Guidelines Ch.

5, Pt. A. The district court, however, found an upward variance was warranted and

sentenced Grace to 72 months imprisonment to be followed by three years of

supervised release. Grace appeals his sentence, alleging it is substantively

unreasonable. We affirm.

“[W]e review a defendant’s sentence under a deferential abuse-of-discretion

standard.” United States v. Boykin, 850 F.3d 985, 988 (8th Cir. 2017) (per curiam).

“A district court abuses its discretion when it (1) fails to consider a relevant factor

that should have received significant weight; (2) gives significant weight to an

improper or irrelevant factor; or (3) considers only the appropriate factors but in

weighing those factors commits a clear error of judgment.” Id. (internal quotation

marks omitted). “[I]t will be the unusual case when we reverse a district court

sentence as substantively unreasonable.” Id. (alteration in original) (internal

quotation marks omitted).

Grace first argues the district court abused its discretion by giving significant

weight to an improper factor: his previous DUI conviction. He also claims the court

committed a clear error of judgment in weighing that factor. Indeed, the driving

factor in the court’s decision to vary upward was Grace’s conviction for a DUI that

occurred just four months prior to the fatal accident.

Although Grace’s previous conviction was already taken into account in

determining his criminal history category, a district court may vary “based on factors

1The Honorable Daniel L. Hovland, United States District Judge for the District

of North Dakota.

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already taken into account by the advisory guidelines, where the Guidelines do not

fully account for those factors, or when a district court applies broader § 3553(a)

considerations in granting the variance.” United States v. Richart, 662 F.3d 1037,

1052 (8th Cir. 2011) (internal quotation marks omitted). “We afford the [district]

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.” United

States v. White, 816 F.3d 976, 988 (8th Cir. 2016) (internal quotation marks omitted).

Here, the district court determined the Guidelines did not fully account for

Grace’s prior DUI conviction. Cf. Richart, 662 F.3d at 1053 (affirming upward

variance where the “Guidelines d[id] not fully account for the nature, circumstances,

and seriousness of [the defendant’s] offense”). Grace’s prior DUI occurred on the

very same highway only four months before the accident. In both instances, Grace

was highly intoxicated, with a blood alcohol level of over .21 percent. Grace’s

repeated behavior within such a short period of time indicates a lack of respect for the

law and the safety of others, which was not adequately reflected in his advisory

Guidelines range. 18 U.S.C. § 3553(a)(2)(A) (sentencing court “shall consider . . .

the need for the sentence imposed to reflect the seriousness of the offense [and] to

promote respect for the law”). In addition, Grace’s repeated behavior following his

prior conviction justifies an upward variance in this instance “to afford adequate

deterrence.” Id. § 3553(a)(2)(B). We therefore conclude the district court neither

abused its discretion nor committed a clear error of judgment in weighing Grace’s

prior DUI conviction.

Grace next argues the district court abused its discretion by giving significant

weight to an inapplicable state statute. In finding the Sentencing Guidelines were too

lenient for Grace’s offense, the district court noted that, by comparison, Grace would

be subject to a 10-year mandatory minimum in North Dakota state court. N.D. Cent.

Code § 39-08-01.2(1). The district court made additional references to the state court

mandatory minimum during sentencing. See Sent. Tr. 23-25, 36.

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As an initial matter, we note that in his opening brief, Grace argues the state

statute is inapplicable to the facts in his case. Later, in his reply brief, Grace argues

the district court erred in considering sentencing disparities between defendants in

federal and state courts. See United States v. Nash, 627 F.3d 693, 697 (8th Cir. 2010)

(finding “the district court would have erred to consider potential federal/state

sentencing disparities”). Because Grace’s latter argument was not raised in his

opening brief, it is not before us on appeal. See United States v. Rice, 699 F.3d 1043,

1050 (8th Cir. 2012) (“Issues not raised in a party’s opening brief are waived.”).

We conclude the district court did not give significant weight to the state

statute in sentencing Grace. Although the court noted in passing the potential

sentence under North Dakota law, the court specifically stated that Grace’s previous

DUI conviction and his high blood alcohol content were what “swayed” the court to

vary upward. And, after imposing the sentence, the district court further explained

its analysis under the § 3553(a) factors, specifically concerning the nature and

circumstances of the offense, the history and characteristics of the defendant, the need

to promote respect for the law, and the need to provide just punishment and adequate

deterrence. Because the district court carefully considered the § 3553(a) factors and

made “an individualized assessment based on the facts presented,” we find the

sentence imposed is substantively reasonable. United States v. Stults, 575 F.3d 834,

849 (8th Cir. 2009) (internal quotation marks omitted).

We therefore affirm the district court’s sentence.