Submitted: April 3, 2017
from United States District Court for the Western District of
Arkansas - Fayetteville
GRUENDER, MURPHY, and KELLY, Circuit Judges.
Lisenbery pleaded guilty to a one-count Information charging
him with conspiracy to distribute methamphetamine in
violation of 21 U.S.C. §§ 841(a)(1) and 846. The
district court sentenced him to 180 months'
imprisonment. Lisenbery appeals, arguing the sentence imposed
is substantively unreasonable.
was arrested after attempting to pick up a package containing
methamphetamine from a parcel sorting facility in Springdale,
Arkansas. He was originally charged in two counts: conspiracy
to distribute 500 grams or more of methamphetamine in
violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A)(viii), and 846; and possession of methamphetamine
with the intent to distribute in violation of 21 U.S.C.
§ 841(a)(1). He later pleaded guilty to a single charge
that carried a statutory maximum of 20 years and no mandatory
minimum. Based largely on information he provided law
enforcement about the quantity of methamphetamine he
distributed, Lisenbery's base offense level was 38,
reduced to level 35 for acceptance of responsibility. At
offense level 35 and criminal history category IV, his
Sentencing Guidelines range was 235-240 months. At
sentencing, the district court granted the government's
motion pursuant to USSG § 5K1.1 to reduce
Lisenbery's offense level by 5 levels to level 30 based
on his substantial assistance. Lisenbery's newly
calculated guideline range was 135-168 months. After
discussing the factors listed in 18 U.S.C. § 3553(a),
the district court found an upward variance from the
guideline range to be appropriate, and sentenced Lisenbery to
a 180-month term of imprisonment.
challenges the substantive reasonableness of his sentence,
which we review "under a deferential
abuse-of-discretion" standard. United States v.
Robison, 759 F.3d 947, 950 (8th Cir. 2014) (quoting
Gall v. United States, 522 U.S. 38, 41 (2007)).
"A district court abuses its discretion and imposes an
unreasonable sentence when it fails to consider a relevant
and significant factor, gives significant weight to an
irrelevant or improper factor, or considers the appropriate
factors but commits a clear error of judgment in weighing
those factors." Id. at 950-51 (quoting
United States v. Kreitinger, 576 F.3d 500, 503 (8th
Cir. 2009)). Lisenbery asserts the district court considered
improper factors and committed a clear error of judgment in
weighing the appropriate factors when imposing his sentence.
argues that the district court erred when it discussed
information contained in two paragraphs of the presentence
report. First, according to paragraph 12 of the report, a man
showed up at the parcel sorting facility on February 13,
2015, falsely claiming to be a drug enforcement agent and
telling the manager of the facility that a package containing
illegal drugs would likely arrive the following day. Although
the man was never identified, the district court initially
inferred that the man was Lisenbery. Defense counsel objected,
pointing out that no one, including law enforcement, had
determined that the unidentified man impersonating a law
enforcement agent was Lisenbery. After further discussion on
the record, the district court acknowledged the mistake. The
court stated that it "believes that there is not a
sufficient basis to arrive at the conclusion that the
person-the unknown person referenced in Paragraph 12" of
the presentence report who impersonated a law enforcement
agent was Lisenbery, and that it "will not take [that]
paragraph 60 of the report described an arrest for battery
with a firearm. The district court referenced the alleged
facts underlying the charge, and defense counsel objected.
Counsel pointed out that Lisenbery had filed a written
objection to this paragraph expressly denying the conduct
alleged, and that the charge was ultimately not prosecuted.
In response, the district court said it "fully
recognize[d] and [was] cognizant of the fact the charge
referenced there was dismissed, " understood "that
the defendant denies having done this, " and stated
"it would be unfair to Mr. Lisenbery to assume that
those were the true facts."
careful review, we discern no abuse of discretion in the
district court's discussion of paragraphs 12 and 60.
Defense counsel timely objected when the district court
discussed the information in these paragraphs, alerting the
court to Lisenbery's written objections. On appeal,
Lisenbery acknowledges that the district court "stated
it did not consider these facts in imposing sentence."
Lisenbery's reason for not taking the district court at
its word-that the "elaborate discussion" of the
disputed allegations "indicates that it did [take these
facts into consideration]"-is unavailing and counter to
the record before us.
next argues the district court committed a clear error of
judgment in weighing the relevant factors when it imposed the
sentence. Lisenbery asserts the district court failed to give
sufficient weight to the facts that he cooperated early on in
the investigation, providing law enforcement with information
about his drug trafficking they may not otherwise have
obtained, and that he himself had been addicted to
methamphetamine from a young age. Lisenbery also argues that
the district court's errors in judgment resulted in a
sentence that created an unwarranted sentencing disparity
among similarly situated defendants.
district court gave careful consideration to the mitigating
factors in this case. The court recognized Lisenbery had
"an extensive problem with addiction to drugs, "
but explained that it believed even a "very powerful
addiction" did not justify drug trafficking on the scale
present in this case. The court also examined the extent of
Lisenbery's cooperation, noting that upon arrest he
"essentially gave a complete confession, " which
included not only the methamphetamine Lisenbery attempted to
pick up at the parcel sorting facility, but also significant
quantities of methamphetamine that had been shipped to him
over the past year. The court gave Lisenbery significant
credit for accepting responsibility "before he lawyered
up, " and for going "above and beyond" to
assist law enforcement despite the potential risk to his own
also argues that his sentence creates an unwarranted
disparity among similarly situated defendants because it is
not clear that the district court took into account the
5-level reduction in his offense level for substantial
assistance. But the court did consider Lisenbery's
cooperation when assessing this factor, and determined that
the drug quantities he was responsible for were still
"at the top." Lisenbery offers no other argument to
support the assertion that his sentence creates an
unwarranted disparity in relation to any other similarly
situated defendant, and we find no error.
court weighed the mitigating considerations against the
aggravating factors in this case: the "incredibly large
quantity of methamphetamine" Lisenbery admitted to
distributing, the amount of money he made selling it, and his
extensive criminal history. Lisenbery was rewarded for his
cooperation with law enforcement, but the benefit was
tempered by the scope of his criminal activity and the
"revolving door" nature of his prior record. The
district court took the appropriate factors into account and
did not abuse its discretion in weighing them. See United
States v. Roberts, 747 F.3d 990, 992 (8th Cir. 2014)
("[A] sentencing court has wide latitude to weigh the