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United States of America v. Blain DeHosse
Case Number: 20-2165
Judge: Before SMITH, Chief Judge, COLLOTON and ERICKSON, Circuit Judges.
Court: United States Court of Appeals
For the Eighth Circuit
St. Louis, MO - Criminal defense lawyer represented defendant with possession with intent to distribute heroin, as well as possession of a firearm in furtherance of a drug-trafficking crime charges.
On June 24, 2019, law enforcement found DeHosse unconscious behind the
wheel of his vehicle in a restaurant parking lot and, in plain view, a pipe containing
suspected marijuana. A search of his vehicle revealed two unloaded firearms, a gram
of heroin, scales, cash, and more than two dozen Xanax pills. DeHosse admitted that
over the course of several months he supplied five or six customers up to 3.5 grams
At sentencing, the district court correctly calculated the Sentencing Guidelines
range as 24 to 30 months’ imprisonment on the charge for possession with intent to
distribute. Although the government and DeHosse sought a sentence within the
Guidelines range, the district court, after weighing the 18 U.S.C. § 3553(a) factors,
varied upward. The court’s upward variance was based on several aggravating
factors, including: (1) the devastating impact of heroin on the community and the
overdose death of DeHosse’s previous customer (from another heroin distributor); (2)
the fact that DeHosse was being held accountable for only 1 gram of heroin when that
quantity under-represented his criminal conduct, which involved selling heroin to
many different customers in quantities from .1 to 3.5 grams for several months;
(3) DeHosse’s extensive criminal history set forth in 31 paragraphs in the Presentence
Investigation Report; (4) the high likelihood of recidivism unless DeHosse “makes
extreme changes in his life;” and (5) the need for deterrence, to protect the public, and
to avoid sentencing disparities. In mitigation, the court considered: (1) DeHosse’s
extensive addiction; (2) his self-observations and desire to change his lifestyle; (3) the
1The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.
firearms were not being actively used or loaded; (4) his early admissions and
acceptance of responsibility; (5) his youthfulness; and (6) the strong support he has
from family and friends.
DeHosse asserts his sentence is substantively unreasonable because it was
greater than necessary to satisfy the sentencing goals, and the district court failed to
give appropriate weight to certain mitigating factors, especially the small amount of
heroin attributable to him, his acceptance of responsibility, and his addiction. He also
contends that it was improper for the court to consider a former customer’s overdose
death when the heroin that caused that death came from a different source than him.
DeHosse “bears the burden of proving that his sentence is unreasonable.” See
United States v. Luleff, 574 F.3d 566, 569 (8th Cir. 2009). “We review all sentences,
whether inside or outside the Guidelines range, under a deferential abuse of discretion
standard.” United States v. Pepper, 518 F.3d 949, 951 (8th Cir. 2008). “A district
court abuses its discretion when it (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. Feemster, 572 F.3d 455,
461 (8th Cir. 2009) (en banc) (cleaned up).
Here, the district court considered the mitigating factors but weighed them
differently than the parties did. The court was within its broad discretion to place
greater weight on the aggravating factors, such as the seriousness of the offense
combined with DeHosse’s extensive criminal history, likely recidivism, and the risk
to public safety. See United States v. Thorne, 896 F.3d 861, 865-66 (8th Cir. 2018)
(per curiam) (affirming an upward variance for an under-represented criminal history,
likely recidivism, or risk to public safety). The district court did not improperly rely
on DeHosse’s former customer’s overdose death, as heroin’s dangerousness is a
consideration that may warrant an upward variance. See, e.g., United States v.
Denson, 967 F.3d 699, 709 (8th Cir. 2020) (finding no abuse of discretion for an
upward variance “because of the seriousness of the offense, highlighting heroin’s
dangerousness and the actual deaths of individuals” involved in the conspiracy).
Outcome: The court thoroughly explained permissible reasons for varying upward from
the applicable Sentencing Guidelines range. We find no abuse of discretion and