Submitted: January 10, 2018
from United States District Court for the Northern District
of Iowa - Ft. Dodge
SMITH, Chief Judge, MELLOY and SHEPHERD, Circuit Judges.
case returns to us after a resentencing on remand. Billy D.
Thorne was convicted of being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1). On
remand, the district court sentenced him to the statutory maximum
of 120 months' imprisonment, applying an upward variance
of 83 months from the high end of the Guidelines range.
Thorne now challenges that sentence as substantively
unreasonable. We affirm.
2012, Thorne obtained a gun in Mason City, Iowa, and
threatened to kill his son and his son's girlfriend.
Thorne was prosecuted by Iowa state authorities and later
convicted of first-degree harassment, in violation of Iowa
Code § 708.7(2). In December 2013, Thorne was indicted
in the Northern District of Iowa for being a felon in
possession of a firearm. A jury found him guilty in April
2014. At sentencing, the district court determined that
Thorne was an armed career criminal (ACC) and sentenced him
to 262 months' imprisonment. See 18 U.S.C.
§ 924(e)(1). The court used Thorne's prior burglary
convictions from Florida as predicate offenses for its ACC
finding. Thorne appealed. Following the government's
concession that the Florida second degree burglary
convictions that formed the basis of Thorne's ACC status
did not qualify as violent felonies, we remanded for
resentencing. United States v. Thorne, 837 F.3d 888,
889 (8th Cir. 2016) (per curiam).
resentencing, the presentence investigation report (PSR) set
Thorne's total offense level at 18. This included a
four-level enhancement for using the firearm in connection
with another felony. See U.S.S.G. §
2K2.1(b)(6)(B). The PSR also listed 18 criminal
convictions. Six of those convictions occurred on March 5,
1997, and were based on a string of burglaries Thorne
committed in Florida in August and September 1996. Thorne was
imprisoned for those offenses until 2012. This enabled them
to be assigned criminal history points. See U.S.S.G.
§ 4A1.2(e). However, despite their numerosity, because
each conviction had the same date of arrest and date of
sentencing, they only caused Thorne to be assessed three
criminal history points. See U.S.S.G. §
4A1.2(a)(2). His resulting criminal history category was II.
Combined with his total offense level of 18, Thorne's
Guidelines range was 30 to 37 months' imprisonment. He
faced a statutory maximum of ten years' imprisonment.
See 18 U.S.C. §§ 922(g)(1) &
government requested an upward variance to 120 months'
imprisonment. It argued that the Guidelines range
inadequately accounted for Thorne's criminal history. It
also argued that the sentence needed to address the
seriousness of the offense, to afford adequate deterrence to
criminal conduct, and to protect the public.
argued that a Guidelines sentence was appropriate. He claimed
that the burglaries were over 20 years old and that several
of his other convictions were even older. Thorne noted that
all the Florida burglaries occurred in a short period of time
and that he had served a lengthy sentence for them. He also
argued that health issues; problems with drugs; and his age
(he was 60 years old on the date of resentencing) warranted
the court's consideration. Additionally, he asked the
court to credit him for a drug program he had participated in
since his initial sentencing.
court stated that it had considered all of the sentencing
factors under 18 U.S.C. § 3553(a) and concluded that
"the nature and circumstances of the offense and the
history and characteristics of the defendant cry out for a
variance upward to 10 years. I find he is a danger to the
community. I find he is at high risk to recidivate."
Transcript of Sentencing Hearing at 21-22, United States
v. Thorne, No. 3:13-cr-03052-LRR (N.D. Iowa Feb. 2,
2017), ECF No. 129. The court held that any mitigating
factors, such as his health, age, and background, were
outweighed by aggravating factors. The court then sentenced
Thorne to 120 months' imprisonment.
appeal, Thorne argues that the district court misweighed the
factors, rendering his sentence substantively unreasonable.
He argues that the court gave insufficient weight to certain
factors he presented at sentencing: namely, his drug history,
his health issues, and his post-incarceration
self-improvement efforts. Our review of a sentence typically
begins by determining whether the district court committed a
significant procedural error. See United States v.
Williams, 624 F.3d 889, 896 (8th Cir. 2010) (citation
omitted). However, when no procedural error is alleged, we
may "bypass the first part of our review and move
directly to review the substantive reasonableness of [the]
sentence." United States v. Franik, 687 F.3d
988, 990 (8th Cir. 2012) (quoting United States v.
Werlein, 664 F.3d 1143, 1146 (8th Cir. 2011). We
"consider the substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard."
Gall [v. United States, 552 U.S. 38, 51,
(2007)]. In conducting this review, we are to "take into
account the totality of the circumstances, including the
extent of any variance from the Guidelines range."
Id. If the defendant's sentence is within the
Guidelines range, then we "may, but [are] not required
to, apply a presumption of reasonableness." Id.
But we are not permitted to apply a presumption of
unreasonableness if the sentence is outside the Guidelines
range. Id. Instead, we "may consider the extent
of the deviation, but must give due deference to the district
court's decision that the § 3553(a) factors, on a
whole, justify the extent of the variance." Id.
We may not require "'extraordinary'
circumstances to justify a sentence outside the
Guidelines" and are prohibited from "the use of a
rigid mathematical formula that uses the percentage of a
departure as the standard for determining the strength of the
justifications required ...