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United States v. Sharkey

United States Court of Appeals, Eighth Circuit

July 18, 2018

United States of America Plaintiff- Appellee
v.
Dennis Sharkey, II Defendant-Appellant United States of America Plaintiff- Appellee
v.
Jacob Burton Defendant-Appellant

          Submitted: January 10, 2018

          Appeals from United States District Court for the Northern District of Iowa - Dubuque

          Before SMITH, Chief Judge, MELLOY and SHEPHERD, Circuit Judges.

          PER CURIAM.

         Dennis Sharkey and Jacob Burton distributed methamphetamine throughout northern Iowa. They were charged with conspiracy to distribute methamphetamine in violation of 21 U.S.C. § 841(a), and they both pled guilty. The district court[1]sentenced Sharkey to 140 months imprisonment and Burton to 154 months imprisonment. Both defendants appeal, citing errors with their sentences. We affirm.

         I.

         At some point in 2013, law enforcement discovered a methamphetamine-distribution operation near Dubuque, Iowa. After some investigation, Michael Bent was identified as a primary distributor in the operation. The government proceeded through the proper channels and obtained a wire tap for Bent's phone. By monitoring this wire tap, law enforcement discovered Sharkey and Burton were lower-level distributors operating under Bent. Both defendants introduced prospective customers to Bent, and both sold various amounts of methamphetamine on a number of occasions in furtherance of the scheme. The defendants were charged by indictment in May 2016 and each ultimately pled guilty to a single charge of conspiracy to distribute methamphetamine.

         In preparation for sentencing, the probation office prepared a presentence investigation report ("PSR") on each of the defendants. Sharkey's PSR assigned him a total offense level of 29 and a criminal history category of V. Burton's noted that he had a total offense level of 29 and a criminal history category of IV. As a result of this information, the parties agreed that Sharkey's advisory sentencing guideline range was 140 to 175 months and Burton's was 151 to 188 months. The court sentenced Sharkey and Burton, respectively, to 140 and 154 months imprisonment.

         Both defendants appeal, arguing that the district court imposed substantively unreasonable sentences, and Burton asserts an additional claim of procedural error.

         II.

         We "first ensure that the district court committed no significant procedural error[] such as failing to calculate (or improperly calculating) the Guidelines range." See Gall v. United States, 552 U.S. 38, 51 (2007). We then review the substantive reasonableness of the defendants' sentences for abuse of discretion. United States v. Phelps, 536 F.3d 862, 869 (8th Cir. 2008). "[S]ubstantive appellate review in sentencing cases is narrow and deferential . . ., [and] it will be the unusual case when we reverse a district court sentence-whether within, above, or below the applicable Guidelines range-as substantively unreasonable." United States v. Feemster, 572 F.3d 455, 464 (8th Cir. 2009) (en banc) (internal quotation marks omitted). On substantive review, an abuse of discretion occurs if the district court "(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." United States v. Pickar, 666 F.3d 1167, 1169 (8th Cir. 2012) (internal quotation marks omitted). A within-guideline sentence may be accorded a presumption of reasonableness on appeal, but "[t]his presumption . . . may be rebutted by reference to the statutory sentencing factors found in 18 U.S.C. § 3553(a)." United States v. Battiest, 553 F.3d 1132, 1136 (8th Cir. 2009) (internal quotation marks omitted).

         A.

         Sharkey contends that his 140-month sentence is substantively unreasonable. We begin from a presumption of reasonableness given that his sentence is at the very bottom of the applicable guideline range. See United States v. Williams, 599 F.3d 831, 834 (8th Cir. 2010). The only means by which Sharkey attempts to overcome this presumption is his assertion that the district court considered an improper factor in arriving at his sentence because the court mentioned that Sharkey introduced other "customers" to Bent. This was error, Sharkey asserts, because the only two "customers" he introduced to Bent were a confidential informant and an undercover police officer. We are aware of no authority stating that a district court cannot consider an informant and undercover officer as customers for the purposes of discussing a defendant's role in a criminal enterprise. This argument also bypasses entirely the fact that Sharkey undoubtedly believed these individuals were genuine customers at the time of the introductions. The district court did not abuse its discretion in ...


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