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United States v. Teresa Witthar, 17-1751 (2018)

Court: Court of Appeals for the Eighth Circuit Number: 17-1751 Visitors: 168
Filed: Apr. 26, 2018
Latest Update: Mar. 03, 2020
Summary: United States Court of Appeals For the Eighth Circuit _ No. 17-1751 _ United States of America lllllllllllllllllllll Plaintiff - Appellee v. Teresa Witthar lllllllllllllllllllll Defendant - Appellant _ Appeal from United States District Court for the Western District of Missouri - Kansas City _ Submitted: January 8, 2018 Filed: April 26, 2018 [Unpublished] _ Before GRUENDER, MELLOY, and SHEPHERD, Circuit Judges. _ PER CURIAM. After Teresa Witthar violated multiple terms of her supervised release
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                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 17-1751
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                   Teresa Witthar

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                     Appeal from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                            Submitted: January 8, 2018
                              Filed: April 26, 2018
                                 [Unpublished]
                                 ____________

Before GRUENDER, MELLOY, and SHEPHERD, Circuit Judges.
                         ____________

PER CURIAM.

       After Teresa Witthar violated multiple terms of her supervised release, the
district court1 revoked her release and sentenced her to twenty-four months’


      1
       The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.
imprisonment with no supervised release. She appeals the district court’s upward
variance, arguing (1) the court committed procedural error by failing to consider the
18 U.S.C. § 3553(a) sentencing factors and (2) the sentence is substantively
unreasonable. We affirm.

       In February 2017, the U.S. Probation Office requested a show-cause hearing,
alleging Witthar violated terms of her supervised release by failing to truthfully
answer inquiries by a probation officer and associating with a previously convicted
felon. In early March 2017, Witthar submitted a pro se motion seeking court
approval to associate with and marry a convicted felon. The government promptly
replied. On March 21, the day before the show-cause hearing and with the pro se
motion pending, Witthar married a convicted felon.

       At the show-cause hearing, the district court noted its consideration of the
sentencing factors, “and in particular the nature and circumstances of the continued
violations and the history and characteristics of this defendant.” The court added,
“[Witthar] is not amenable to supervision.” The district court correctly calculated the
guideline range of three to nine months’ imprisonment. The court then decided to
vary upwards and sentenced Witthar to twenty-four months’ imprisonment with no
supervised release, the statutory maximum.

       Upon careful review of the record, we conclude the district court did not
commit plain procedural error. See United States v. McGhee, 
869 F.3d 703
, 705 (8th
Cir. 2017) (per curiam) (“Where . . . the defendant did not object to procedural
sentencing errors before the district court, they are . . . reviewed only for plain error.”
(quotation marks omitted)). The record indicates the district court sufficiently
considered the sentencing factors in 18 U.S.C. § 3553(a), as required by 18 U.S.C.
§ 3583(e). See 
id. at 706
(“[A]ll that is required is evidence that the court has
considered the relevant matters and that some reason be stated for its decision. If a
sentencing judge references some of the considerations contained in § 3553(a), we
are ordinarily satisfied that the district court was aware of the entire contents of the

                                           -2-
relevant statute.” (citation and quotation marks omitted) (quoting United States v.
White Face, 
383 F.3d 733
, 740 (8th Cir. 2004))); White 
Face, 383 F.3d at 740
(“A
district court need not mechanically list every § 3553(a) consideration when
sentencing a defendant upon revocation of supervised release.”).

       Additionally, as the district court considered the § 3553(a) factors and provided
a sufficient explanation for the variance, we conclude the sentence is not an abuse of
discretion and is substantively reasonable. See United States v. Growden, 
663 F.3d 982
, 984 (8th Cir. 2011) (per curiam) (“[W]e review the substantive reasonableness
of [a revocation] sentence under a deferential abuse-of-discretion standard.” (citing
Gall v. United States, 
552 U.S. 38
, 51 (2007))); see also United States v. Thunder,
553 F.3d 605
, 609 (8th Cir. 2009) (holding a revocation sentence above the advisory
guideline range was not an abuse of discretion); United States v. Miner, 
544 F.3d 930
, 932 (8th Cir. 2008) (“A district court abuses its discretion and imposes an
unreasonable sentence when it fails to consider a relevant and significant factor, gives
significant weight to an irrelevant or improper factor, or considers the appropriate
factors but commits a clear error of judgment in weighing those factors.”).

      Accordingly, we affirm the judgment of the district court.

                        ______________________________




                                          -3-

Source:  CourtListener

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