Filed: Aug. 20, 2019
Latest Update: Mar. 03, 2020
Summary: United States Court of Appeals For the Eighth Circuit _ No. 18-3132 _ United States of America lllllllllllllllllllllPlaintiff - Appellee v. Don L. Elbert, II lllllllllllllllllllllDefendant - Appellant _ Appeal from United States District Court for the Western District of Missouri - Kansas City _ Submitted: June 14, 2019 Filed: August 20, 2019 [Unpublished] _ Before COLLOTON, KELLY, and ERICKSON, Circuit Judges. _ PER CURIAM. Don L. Elbert, II, admitted to violating four of his supervised relea
Summary: United States Court of Appeals For the Eighth Circuit _ No. 18-3132 _ United States of America lllllllllllllllllllllPlaintiff - Appellee v. Don L. Elbert, II lllllllllllllllllllllDefendant - Appellant _ Appeal from United States District Court for the Western District of Missouri - Kansas City _ Submitted: June 14, 2019 Filed: August 20, 2019 [Unpublished] _ Before COLLOTON, KELLY, and ERICKSON, Circuit Judges. _ PER CURIAM. Don L. Elbert, II, admitted to violating four of his supervised releas..
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United States Court of Appeals
For the Eighth Circuit
___________________________
No. 18-3132
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Don L. Elbert, II
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the Western District of Missouri - Kansas City
____________
Submitted: June 14, 2019
Filed: August 20, 2019
[Unpublished]
____________
Before COLLOTON, KELLY, and ERICKSON, Circuit Judges.
____________
PER CURIAM.
Don L. Elbert, II, admitted to violating four of his supervised release
conditions. As a result, the district court1 revoked his supervised release and
sentenced him to 12 months of imprisonment followed by 10 years of supervised
release. On appeal, he argues that the district court failed to state the range suggested
by the United States Sentencing Guidelines or the applicable 18 U.S.C. § 3553(a)
factors before imposing his sentence. We affirm.
This is the third time that the district court has revoked Elbert’s supervised
release. Elbert began his third term of supervised release on April 20, 2018, and on
July 25, the Probation Office recommended revocation based on five alleged
violations and calculated a Guidelines range of 6 to 12 months of imprisonment. At
the revocation hearing, Elbert stipulated to four violations and requested a sentence
“at the low end” of the Guidelines range. After engaging in a lengthy colloquy with
Elbert about the circumstances that led to his repeated appearances in revocation
proceedings, the district court imposed a sentence at the top of the Guidelines range.
Because Elbert did not object to any purported procedural errors before the
district court, we review his sentence for plain error. See United States v. Miller,
557
F.3d 910, 916 (8th Cir. 2009). To establish reversible plain error, Elbert must show
(1) an error, (2) that is plain, (3) that affects his substantial rights, and (4) that
“seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.” United States v. Olano,
507 U.S. 725, 732 (1993) (alteration in
original) (quoting United States v. Young,
470 U.S. 1, 15 (1985)). The district
court’s failure to state the applicable Guidelines range at the final revocation hearing
does not constitute reversible error. Our review of the hearing transcript reveals no
confusion as to the applicable Guidelines range, and Elbert does not contest the
district court’s calculations on appeal, so Elbert fails to show that this purported error
1
The Honorable Brian C. Wimes, United States District Judge for the Western
District of Missouri.
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“affected the outcome of the district court proceedings.”
Id. at 734. And the district
court did not commit plain error by failing to explain Elbert’s sentence by reference
to the statutory sentencing factors applicable to revocation. The district court was
intimately familiar with Elbert’s criminal history and characteristics, having presided
over two previous revocation hearings, and it discussed at length Elbert’s difficulties
complying with his prior terms of supervised release. These considerations are
relevant to the applicable statutory sentencing factors, and “[t]he district court’s
explanation was adequate in the context of this case.” United States v. Chavarria-
Ortiz,
828 F.3d 668, 672 (8th Cir. 2016).
The district court’s judgment is affirmed.
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