Submitted: January 10, 2018
Appeals from United States District Court for the Northern
District of Iowa - Dubuque
SMITH, Chief Judge, MELLOY and SHEPHERD, Circuit Judges.
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
courtsentenced Sharkey to 140 months
imprisonment and Burton to 154 months imprisonment. Both
defendants appeal, citing errors with their sentences. We
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.
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
defendants appeal, arguing that the district court imposed
substantively unreasonable sentences, and Burton asserts an
additional claim of procedural error.
"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
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 ...