On appeal from The U.S. District Court for the District of Nebraska - Omaha ">

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Date: 01-12-2022

Case Style:

United States of America v. Derrick D. West-Jones, also known as Derrick Jones

Case Number: 16-4317

Judge: Before BENTON, SHEPHERD, and KELLY, Circuit Judges. ____________ PER CURIAM


United States Court of Appeals For the Eighth Circuit
On appeal from The U.S. District Court for the District of Nebraska - Omaha

Plaintiff's Attorney: United States Attorney’s Office

Defendant's Attorney:

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West-Jones appeals his sentence, claiming that the district court was improperly
influenced by the dismissed allegations against him, that the court failed to adequately
explain its reasoning, and that the sentence is substantively unreasonable. We affirm.
Because West-Jones did not raise these objections in the district court, we
review the procedural challenges for plain error. United States v. Miller, 557 F.3d
910, 916 (8th Cir. 2009). “To establish plain error, [West-Jones] must prove that (1)
there was error, (2) the error was plain, and (3) the error affected his substantial
rights.” Id.
“[A] district court commits procedural error . . . by basing a sentence on
unproven, disputed allegations rather than facts.” United States v. Richey, 758 F.3d
999, 1002 (8th Cir. 2014). Here, we find no evidence that the district court considered
the dismissed allegations in determining West-Jones’s sentence. At the revocation
hearing, the court referred only to the drug use violation and specifically stated that
The Honorable Lyle E. Strom, United States District Judge for the District of
it reviewed the amended revocation worksheet. The court then sentenced West-Jones
within the Guidelines range for the Grade C violation.
West-Jones claims the length of his sentence indicates the court must have
taken the dismissed allegations into account. On the contrary, the district court had
ample reason for imposing a sentence at the high end of the Guidelines range. Upon
receiving leniency for his first violation, West-Jones resumed his marijuana use
shortly thereafter. See United States v. Hum, 766 F.3d 925, 928 (8th Cir. 2014)
(finding repeated violations after leniency relevant to sentencing). Moreover, because
the same judge presided over West-Jones’s original sentencing and his revocation
hearings, the court was well aware of West-Jones’s history and characteristics. See
Miller, 557 F.3d at 918.
Even assuming the court plainly erred by offering an inadequate explanation for
the sentence, we find the sentence imposed did not violate West-Jones’s substantial
rights: West-Jones admitted to violating the conditions of his supervised release, the
sentence imposed was within the Guidelines range for that violation, and it did not
exceed the statutory maximum. USSG § 7B1.4(a) (setting advisory Guideline range
of 8 to 14 months imprisonment); 18 U.S.C. 3583(e)(3) (setting statutory maximum
of 36 months imprisonment); cf. United States v. Franklin, 397 F.3d 604, 607 (8th Cir.
As to West-Jones’s claim that the sentence is substantively unreasonable, we
find that—based on the reasons above—the district court did not abuse its discretion
by imposing a sentence within the Guidelines range. See Miller, 557 F.3d at 916
(standard of review); USSG § 7B1.4(a) (range of imprisonment for Grade C
violation); United States v. Petreikis, 551 F.3d 822, 824 (8th Cir. 2009) (applying
presumption of substantive reasonableness to revocation sentence within Guidelines

Outcome: We therefore affirm West-Jones’s sentence

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