Submitted: January 9, 2017
from United States District Court for the Northern District
of Iowa - Cedar Rapids
RILEY, Chief Judge, LOKEN and BENTON, Circuit Judges.
serving his term of supervised release, Steven Petersen left
a voice mail soliciting his daughter to commit an assault on
Petersen's behalf. The district courtrevoked
Petersen's supervised release and committed Petersen to
the Bureau of Prisons for 8 months followed by one year of
supervised release. Petersen appeals, arguing there was
insufficient evidence to find he committed a new offense and
his new sentence is substantively unreasonable. We affirm.
See 28 U.S.C. § 1291 (appellate jurisdiction).
pled guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2)
in 2008. The district court sentenced Petersen to 78 months
imprisonment followed by a three-year term of supervised
release. Petersen began his term of supervised release in
August 2013. Among other conditions, Petersen was prohibited
from unlawful drug use, "entering bars, taverns, or
other establishments whose primary source of income is
derived from the sale of alcohol, " and committing a
subsequent federal, state, or local crime and was required to
submit to periodic drug testing.
initially had difficulties while on supervised release,
including refusing to work with female probation officers and
making threatening statements. In February 2014, Petersen
failed a drug test and admitted to using marijuana. The
district court modified the conditions of Petersen's
supervised release and required him to serve two consecutive
weekends in jail in March 2014. For almost two years
following this modification, Petersen complied with all
conditions of his supervised release, including completing
substance abuse and mental health treatment and submitting to
all drug tests.
February 2016, while still on supervised release, Petersen
attended a memorial held at a bar, intending to meet friends.
Petersen did not enter the bar itself, but sat at a table
located on the patio of the bar. At his sentencing hearing,
Petersen admitted to entering the same bar several months
prior. The bar's manager, Betty Cole, requested that her
friend, Kathy Speicher, tell Petersen to leave. Speicher
approached Petersen and told him Cole did not want Petersen
at the bar. According to Speicher, Petersen was
"pleasant" and "nice" to her, but as he
turned to leave, Petersen told Speicher to relay to Cole that
"I'm coming back and we're going to have
words." Speicher testified Petersen then said "No,
you tell her that I'm coming back, and I'm going to
get in her face and we're going to have words" and
followed that comment with "No, you tell her I'm
coming back, and I'm bringing a gun." Petersen
denied this version of events, yet did admit "[i]f [he]
said anything like that, [he] said, 'Tell Betty to get
her gun.'" Speicher and Petersen agreed Petersen
then left the premises.
after Petersen left, he called his daughter, Benita Petersen,
who was inside the bar for the memorial. Petersen left his
daughter a voice mail in which he said: "[Cole] just
threw me out of . . . [the bar] and I want her . . . head and
you're the woman enough to do it. . . . I did a job for
you once now I wanna return the favor, bust her . . . nose.
I'll pay ya a hundred dollars and I'll pay all your
fines. Go in there and bust her ass up, alright . . . Please?
Thank you bye." (Last ellipsis in original). Petersen
testified he was just "venting" and did not intend
actually to hire his daughter to assault Cole; however,
Petersen never contacted Benita to tell her he did not want
her to assault Cole. Benita later played the message for her
fiancé, who then informed Cole of Petersen's
reported the details of the incident to a deputy sheriff, but
chose not to write out a statement. Charges subsequently were
filed against Petersen in state court for solicitation to
commit an aggravated misdemeanor in violation of Iowa Code
§ 705.1(3). Petersen's probation officer filed a
petition to revoke Petersen's supervised release based on
four violations: failure to comply with drug testing in
February 2014, use of a controlled substance in February
2014, a new violation based on the February 2016 incident
resulting in the state charge for solicitation, and entering
a bar in February 2016.
revocation hearing held April 19, 2016, the district court
explicitly relied on statements made by Speicher, the deputy
sheriff, and Benita and found Petersen not totally credible.
The district court found Petersen committed the new crime of
solicitation to commit an aggravated misdemeanor,
which it treated as a grade C violation under United States
Sentencing Guidelines (U.S.S.G. or Guidelines) §
7B1.1(a)(3). Based on that violation and Petersen's
criminal history category II at the time of his original
sentencing, the Guidelines range of imprisonment was 4 to 10
months. See id. § 7B1.4. The government
requested a revocation sentence within the Guidelines range,
but Petersen asked for no more than 30 days in jail. The
district court considered the 18 U.S.C. § 3553(a)
factors and noted Petersen had a history of mental illness,
substance abuse, and violent tendencies and was a high risk
to recidivate. The district court revoked Petersen's
supervised release and sentenced him to 8 months imprisonment
followed by a one-year term of supervised release. Petersen
filed this timely appeal, asserting (1) the evidence was
insufficient to show by a preponderance that he committed a
new offense, and (2) 8 months imprisonment was a
substantively unreasonable sentence.
district court may "revoke supervised release if the
government proves by a preponderance of the evidence that the
defendant violated a condition of supervised release."
United States v. Boyd, 792 F.3d 916, 919 (8th Cir.
2015); see also 18 U.S.C. § 3583(e)(3). We
review such a revocation decision for abuse of discretion,
and we review any findings of fact as to whether or not a
violation occurred for clear error. See Boyd, 792
F.3d at 919. We reverse a revocation decision only if we have
"'a definite and firm ...